Constitutional Court Rules Men Can Take Wives’ Surnames in Landmark Equality Judgment
In a groundbreaking ruling on gender equality, the Constitutional Court has struck down provisions of South Africa’s Births and Deaths Registration Act that prevented men from adopting their wives’ surnames. The decision, handed down by Judge Leona Theron on Thursday, declared sections of the 1992 Act unconstitutional for unfairly discriminating on the grounds of gender.
The case was brought before the court by two couples, Jana Jordaan and Henry van der Merwe, and Jess Donnelly-Bornman and Andreas Nicolaas Bornman. Both couples challenged the long-standing restrictions that only allowed women to adopt or modify their surnames upon marriage, while denying men the same right.
How the case unfolded
Van der Merwe was barred from taking his wife’s surname when the couple applied to Home Affairs. Similarly, Bornman was prevented from hyphenating his surname to include his wife’s, a request also denied under existing legislation. The couples argued that these limitations were based on outdated gender roles that undermined constitutional guarantees of equality.
The Bloemfontein High Court previously sided with the couples, ruling that the Act unfairly entrenched gender bias. That judgment also directed the Department of Home Affairs to amend the affected records. However, the matter was referred to the Constitutional Court for final confirmation, given the significance of the constitutional questions involved.
The Constitutional Court’s findings
Judge Theron’s ruling confirmed the earlier High Court decision, stating that the law discriminated against men by assuming only women may alter their surnames after marriage. She declared the relevant provisions of the Act invalid, paving the way for men to adopt their spouses’ surnames or to hyphenate them if they choose.
Theron’s judgment emphasised that laws cannot be based on assumptions about traditional gender roles in a society that is committed to constitutional equality. By denying men the ability to change or combine surnames in the same way women can, the Act entrenched inequality rather than dismantling it.
Costs and government response
The Constitutional Court also ordered the Department of Home Affairs to cover the applicants’ legal costs, including the expenses for two counsel. Ministers of Home Affairs Leon Schreiber and of Justice and Constitutional Development Mamoloko Kubayi did not oppose the application, effectively leaving the Constitutional Court to weigh constitutional rights against outdated administrative practices.
By not contesting the matter, the state acknowledged the pressing need for reform in how personal identity and marriage are treated under the law. The ruling now places a legal duty on Home Affairs to implement changes ensuring that both men and women enjoy equal rights in surname choices after marriage.
Significance of the ruling
The judgment marks a crucial step in aligning South Africa’s legislation with the constitutional principle of gender equality. For decades, surname laws mirrored patriarchal traditions, assuming that it was only the woman who might change her surname upon marriage. The Constitutional Court has now declared this framework invalid, recognising that personal identity within marriage must reflect equality rather than outdated stereotypes.
The couples who brought the case had argued that their inability to exercise surname choices was not a minor inconvenience, but a direct violation of their dignity and equality. The court’s ruling affirms this perspective, ensuring that future couples will not face the same restrictions.
Broader impact
The ruling is expected to influence not only married couples but also wider discussions about identity, equality, and administrative practices in South Africa. By striking down a law that treated men and women differently without justification, the Constitutional Court has reaffirmed its role as a guardian of equality and fairness.
Legal experts suggest that the decision may also prompt further review of legislation where outdated gender roles are still embedded in law. The order for Home Affairs to pay the applicants’ legal costs further underscores the seriousness with which the court viewed the discriminatory effect of the legislation.
For the couples who challenged the law, the ruling closes a lengthy legal battle. For South Africa, it represents another milestone in dismantling laws that no longer align with the values of the Constitution.
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