The Constitutional Court has ruled in a unanimous judgement that husbands can assume their wives’ surnames.
The judgement by Justice Leona Theron was handed down on Thursday at the Constitutional Court in Braamfontein, Johannesburg.
Theron said Section 26(1)(a)–(c) of the Births and Deaths Registration Act 51 of 1992 is un-Constitutional as far as preventing men from assuming their wives’ surnames.
The Act unfairly discriminates on the basis of gender by failing to afford men the right to assume the surname of women after marriage, Theron explained.
The applicants
The applicants in the matter were Jana Jordaan, her husband Henry van der Merwe, Jess Donnelly-Bornman and her husband Andreas Nicolaas Bornman.
The respondents were the Minister of Home Affairs and the Minister of Justice and Constitutional Development.
In the judgement, Theron said prior to their marriage, Jordaan and van der Merwe had agreed that van der Merwe would take the surname of Jordaan. Upon registration of their marriage, the pair was advised by the Department of Home Affairs that it was not possible for the husband to assume the wife’s surname.
After this, the applicants took the matter to the Free State High Court in Bloemfontein. The high court ruled that the section of the Act in question is unconstitutional to the extent that it discriminates on the grounds of gender.
The high court further held that regulation 18(2)a is un-Constitutional to the extent that it discriminates against male persons by failing to provide for a man to apply to change his name following a change in his marital status.
The applicants then sought to confirm the declaration of invalidity in the Constitutional Court.
Differentiation
Theron said the inability of men to assume their wives’ surnames constitutes differentiation.
“On whether the differentiation constitutes unfair discrimination, this court found that the discrimination negatively affected both men and women. In the case of men, they are deprived of the ability to take their wives’ surnames if they so wish. In the case of the women, the effects of this scheme are far more insidious.
“It is not merely so that they are deprived of the right to have their surnames serve as the family surname where their husbands wish to take that surname. It also reinforces patriarchal gender norms, which prescribe how women may express their identity, and it makes this expression relational to their husband as a governmental and cultural default,” said Theron.
“The court found that this limitation of equality cannot be sustained under section 36 of the Constitution,” said Theron.
The Constitutional Court judgement awarded costs against the first respondent (Minister of Home Affairs).
