ConCourt’s major surname ruling

JOHANNESBURG – The Constitutional Court of South Africa (ConCourt) has ruled that husbands are now permitted to legally adopt their wives’ surnames.

Yesterday, the ConCourt confirmed that sections of the Births and Deaths Registration Act were unconstitutional, effectively upholding a lower court’s ruling.

This follows a September 2024 judgment by the Free State High Court in Bloemfontein, which found that section 26(1)(a) to (c) of the Act, along with Regulation 18(2)(a), was discriminatory on the basis of gender.

The case arose after two husbands lodged a legal challenge, arguing that the law barred them from taking their wives’ surnames after marriage.

The first couple, identified only by their initials, married in 2021.

However, they were denied the husband’s request to assume his wife’s surname after the Department of Home Affairs officials indicated the law did not allow it. The second couple, Jess Donnelly-Bornman and Andreas Bornman, married in 2022 and experienced similar difficulties when trying to adopt a hyphenated surname combining both of their last names.

During Thursday’s proceedings, Judge Leona Theron found that the practice of wives taking husbands’ surnames is a colonial concept rooted in patriarchal norms, where women were seen to be inferior to men.

“This practice is largely a colonial import rooted in patriarchal norms where women were seen as legally inferior to their husbands and expected to assume their identity,” Theron said.

The judge declared the contested provisions of the Act invalid, stating that they ‘irrationally’ violated section 1(9) of the constitution. “It unfairly discriminates on the grounds of gender by failing to offer a woman the right to have her spouse assume her surname,” she said.

Theron ruled that the declaration of invalidity would be suspended for 24 months to allow parliament time to amend the Act or develop a new law.

She also explained that until the new legislation or amendments take effect, the current provisions will not apply when a person takes their spouse’s surname after marriage. They will also not apply when someone who has already assumed a spouse’s surname resumes a surname they used previously. The same applies when a married or divorced person, or a widow or widower, resumes any surname they have used at another time.