Court Allows South African Men to Take Their Wife’s Surname

South Africa’s Constitutional Court has delivered a groundbreaking ruling that allows men to legally adopt their wife’s surname, overturning a decades-old law that barred them from doing so.

The court described the previous legislation as a colonial-era import that amounted to gender-based discrimination. It ruled in favour of two couples who had challenged the law after they were denied the right to register under their preferred surnames.

One of the men, Henry van der Merwe, was blocked from taking his wife Jana Jordaan’s surname. Another, Andreas Nicolas Bornman, was prevented from hyphenating his surname to include that of his wife, Jess Donnelly, despite both couples arguing that the restriction was unfair and unconstitutional.

The Constitutional Court upheld a lower court decision and confirmed that the section of the Births and Deaths Registration Act which prevented men from assuming their wife’s surname was unconstitutional. Parliament will now be required to amend the Act and its regulations to bring them in line with the ruling.

The judges highlighted that, historically, many African cultures allowed women to retain their maiden names after marriage, and children often carried their mother’s clan name. This tradition only changed with the arrival of European colonisers and the spread of Roman-Dutch legal customs, which introduced the expectation that a wife should assume her husband’s surname.

The court noted that while South Africa has made important strides in gender equality since the end of apartheid, certain discriminatory laws and practices rooted in colonialism and patriarchy have remained in place.

Both the Minister of Home Affairs, Leon Schreiber, and the Minister of Justice, Mamoloko Kubayi, did not oppose the couples’ application. They agreed that the outdated law should be struck down.

The Free State Society of Advocates also backed the case, arguing that denying men the option to take their wife’s surname reinforced harmful gender stereotypes by granting women a choice that was not equally available to men.

With this ruling, South Africa has moved a step closer towards eliminating gender based inequalities in family law, marking a historic shift in how marriage and identity are recognised in the country.