The Constitutional Court of South Africa has ruled that husbands can legally adopt their wives’ surnames, striking down sections of the Births and Deaths Registration Act as unconstitutional.
The decision upholds a September 2024 ruling by the Free State High Court in Bloemfontein, which found that the law discriminated based on gender.
The case was brought by two couples who challenged the law after being denied the right to adopt their wives’ surnames.
Henry van der Merwe was refused permission to take the surname of his wife, Jana Jordaan, while Andreas Bornman was blocked from hyphenating his surname to include that of his wife, Jess Donnelly-Bornman.
Judge Leona Theron described the practice of wives taking their husbands’ surnames as a colonial concept rooted in patriarchal norms, where women were considered legally inferior.
She found the contested provisions of the Act violated the Constitution by failing to allow a woman the right to have her husband assume her surname.
The ruling suspends the declaration of invalidity for 24 months, giving parliament time to amend the Act or enact new legislation.
In the meantime, the current provisions will not apply when a person takes their spouse’s surname, resumes a previously used surname, or adds a previous surname to their current one.
If parliament fails to act within the two years, the court’s measures will remain in place until remedial legislation is passed.
The court also ordered the Minister of Home Affairs to pay the legal costs of the two couples.
The Free State Society of Advocates supported the couples in the case, arguing that the law perpetuated harmful stereotypes by denying men a choice available to women.
Neither the Minister of Home Affairs nor the Minister of Justice and Constitutional Development opposed the application.
Parliament must now amend the Births and Deaths Registration Act and its regulations for the ruling to be fully implemented.
More: IOL
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