Constitutional Court Rules Husbands May Take Wives’ Surname

On 11 September 2025, the Constitutional Court made a groundbreaking ruling which permits husbands to assume their wives’ surname upon the conclusion of their marriage thereby declaring section 26(1)(a) – (c) of the Births and Deaths Registrations Act 51 of 1992 and Regulation 18(2)(a) unconstitutional and inconsistent with the provisions of section 9 and 10 of the Constitution.

Factual Background

The first applicant, Jane Jordaan married the second applicant, Mr Henry Van der Merwe in 2021 and had previously agreed that prior to their marriage, the second applicant will assume the surname of the first applicant for purpose of preserving her familial ties to her deceased parents.

Upon registration of their marriage, the Department informed the applicants that the provision to assume the first applicant’s surname is not permitted in law.

The third and fourth applicants are Jess Donnelly -Borman and Andreas Nicolaas Bormam respectively, who are married to each other. The third applicant wished to retain her surname to preserve familial ties too with her biological parents as she is the only child born from her parents.

When he too could not legally assume his wife`s surname, the third applicant, opted for a double barrel surname.

The applicants instituted legal proceedings in the Bloemfontein High Court in which they sought relief to declare section 26(1)(a) -(c) of the Births and Deaths Registrations Act 51 of 1992 and the regulation 18 (2)(a) unconstitutional on grounds of gender discrimination and appropriate remedy thereof.

Section 26(1)(a)-(c) provides:

“Assumption of another surname—

(1) Subject to the provisions of this Act or any other law, no person shall assume or describe himself or herself by or pass under any surname other than that under which he or she has been included in the population register, unless the Director-General has authorized him or her to assume that other surname: Provided that this subsection shall not apply when:

(a) a woman after her marriage assumes the surname of the man with whom she concluded such marriage or after having assumed his or her surname, resumes a surname which she bore at any prior time;
(b) a married or divorced woman or a widow resumes a surname which she bore at any prior time; and
(c) a woman, whether married or divorced, or a widow adds to the surname which she assumed after the marriage, any surname which she bore at any prior time.”

Regulation 18(2), provides:

“Assumption of another surname—

(2) The reasons referred to in section 26(2) of the Act must relate to—
(a) a change in the marital status of a woman.
(b) assumption by a person of his or her biological father’s surname, where the father has recently acknowledged paternity in terms of regulation 13 or 14; or
(c) protection of a person in terms of the Witness Protection Act, 1998 (Act No. 112 of 1998).”

The application remained unopposed as the applicants contended that the impugned provisions above read with the regulation were a violation of the right to equality as set out in Section 9(2) & (3) of the Constitution.

The Court a quo ruled that:

1. Section 26(1)(a) – (c) is declared to be unconstitutional to the extent that it discriminates on the ground of gender by failing to:

– Afford a female person the right to have her spouse assume her surname.
– Afford a male person the right to assume the surname of the woman with whom they conclude a marriage or after having assumed her surname, resume a surname which he bore at any prior time.
– Allow for a married or divorced man or widower to resume a surname which he bore at any time.
– Allow for a man, whether married or divorced or a widower, to add to the surname which he assumed after the marriage any surname which he bore at any prior time.
– Thereby subjecting any change to the surname of a male person after marriage to the authorisation of the director-general in terms of section 26(2).
2. Regulation 18(2)(a) of the regulations is declared to be unconstitutional to the extent that it discriminates against male persons by failing to provide for the change in the marital status of a man.
3. The declaration of invalidity in paragraphs 1 and 2 shall be suspended for a period of 24 months pending amendments to legislation or passing new legislation.

The applicants approached the Constitutional Court seeking confirmation of the declaration of invalidity of the aforesaid regulation and section. This was premised on the provisions of section 167(5) of the Constitution which states that the Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, the High Court of South Africa, or a Court of similar status before that order has any force.

The applicants retained their contention that the impugned provisions are patriarchal, discriminate on a prohibited ground and cannot be justified in an open and democratic society. The applicants alleged that section 26(1)(a) – (c) of the Act and regulation 18(2)(a) of the regulations are inconsistent with the provisions of section 9 (equality) and section 10(human dignity) of the Constitution.

In their submissions, the Respondents agreed with the order of the court a quo and henceforth conceded that the Act should be amended to reflect constitutional values. In addition, they agreed with the applicant’s proposal to have the constitutional invalidity provisions suspended pending amendment of the offending statutory provisions.

Section 9 of the Constitution provides as follows:

1. Everyone is equal before the law and has the right to equal protection and benefit form the law.
2. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
3. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
4. No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
5. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

In determining unfair discrimination, the Court referred to the Harksen case where a two-staged test was applied. First, the court ought to determine whether the provision differentiates between people or categories of people. Secondly whether the differentiation amounts to discrimination and whether such discrimination is unfair. The court pronounced that the heterosexual marriages whereby men assume their wives does substantiate differentiation.

In determining whether the differentiation constituted an unfair discrimination, the court relied on the provisions of section 9(3), wherein the differentiation on the grounds of gender is stipulated therein. Section 9(5) provides that discrimination on one or more grounds stated in section 9(3) is unfair unless it is established that the discrimination is fair for which the Respondents failed to prove.

The discrimination reinforces patriarchal gender norms, which prescribe how women may express their identity, and it makes this expression relational to their husbands, as a governmental and cultural default. The court stated that the inability of husbands to assume their wives’ surnames removes their right to make choices pertaining to their own identity. In addition, the provision is demeaning to women, since it conveys that only the man’s surname deserves to serve as the family surname.

The default position was that a woman automatically assumed the surname of her husband upon marriage. The effect of the judgement is that a woman is now afforded the choice to assume her husband’s surname or to retain her surname or to assume a double-barrelled surname of her own surname and her husband’s surname.

N Ndukula, Associate at Mphela & Associates Attorneys Inc, assisted by Errol Matloga, Candidate Legal Practitioner