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South Africa’s Constitutional Court has ruled that husbands may legally take their wives’ surnames, striking down a decades-old law that barred them from doing so.
The court found the provision in the Births and Deaths Registration Act to be a “colonial import” that amounted to gender-based discrimination.
The case was brought by two couples: Henry van der Merwe, who was denied the right to take the surname of his wife, Jana Jordaan, and Andreas Nicolas Bornman, who was prevented from hyphenating his surname to include that of his wife, Jess Donnelly-Bornman.
Parliament will now have to amend the legislation and its regulations for the ruling to take effect.
The law dates back to white-minority rule, but the court noted that it contradicted South Africa’s post-apartheid constitution, which enshrines gender equality.
In its judgment, the court pointed out that in many African cultures, women traditionally retained their birth names after marriage and children often took their mother’s clan name — a practice altered by colonialism, missionary influence, and the imposition of Roman-Dutch law.
“This custom also came into existence as a result of legislation introduced by countries that colonised African nations south of the Sahara,” the court said.
Neither the Minister of Home Affairs, Leon Schreiber, nor the Minister of Justice and Constitutional Development, Mamoloko Kubayi, opposed the application. Both acknowledged the law was outdated.
The Free State Society of Advocates, which joined the case in support of the couples, argued that barring men from adopting their wives’ surnames perpetuated harmful gender stereotypes.
The ruling has been hailed as a step forward in dismantling discriminatory laws and advancing gender equality in South Africa.
