Two Free State men will now take on their wives’ surnames after a historic court ruling found parts of the Registration of Births and Deaths Act unconstitutional.
The High Court judgment followed a challenge by two couples who argued that the law discriminated against men and perpetuated patriarchal norms by preventing them from assuming their spouses’ surnames.
Two Free State Men Win Court Case To Adopt Wives’ Surnames
The two couples, along with the Free State Society of Advocates, contended that Section 26(1) of the Act violated gender equality by allowing only women the option to change their surnames upon marriage. The court agreed, declaring the provisions unconstitutional due to gender-based discrimination.
Judge Joseph Mhlambi, who presided over the case, ruled that the law unfairly discriminates against men based on gender and violates constitutional rights to equality.
“I am satisfied that the two couples have established their entitlement to the relief sought,” Mhlambi said.
The Couples’ Cases
The first couple, who remain unnamed, had discussed the issue of surnames as early as 2014, intending for the husband to take on the wife’s surname, which belonged to her biological parents.
“They passed away when she was four years old. She has no intention of ever changing her surname,” the judge noted.
Despite their plans, the Department of Home Affairs had barred the husband from assuming the surname due to the existing regulations.
Court Rules in Favor of Two Free State Men, Allowing Them to Adopt Their Wives’ Surnames [Image: The South African]
The second couple, Jess Donnelly-Bornman and Andreas Bornman faced similar challenges after their 2022 wedding in Knysna. They wanted to combine their surnames to reflect their familial unit but discovered that only the female spouse was allowed to change her name.
“Both did not wish to have different surnames from each other and their children,” Mhlambi said, quoting their arguments.
The court also heard from the Free State Society of Advocates, which joined the case as amicus curiae, or friends of the court. The group argued that the law’s restriction on men assuming their wives’ surnames perpetuated harmful gender stereotypes and violated principles of equality. By limiting the choice to women, the law enforced outdated norms of a patriarchal society, they claimed.
The court declared Section 26(1)(a)-(c) of the Births and Deaths Registration Act and Regulation 18(2)(a) of the related regulations unconstitutional. However, the declaration of invalidity was suspended for 24 months to give the government time to amend the legislation.
The Department of Home Affairs has been ordered to amend the relevant surnames as requested by the applicants.