South Africa’s Constitutional Court has struck down a law that barred men from adopting their wives’ surnames, describing it as discriminatory and a remnant of colonial rule.
Gatekeepers News reports that the landmark ruling came after two couples challenged provisions of the Births and Deaths Registration Act, which only permitted women to assume their husband’s surname. Parliament will now be required to amend the Act and its regulations before the change takes effect.
One of the applicants, Henry van der Merwe, was denied permission to adopt the surname of his wife, Jana Jordaan. Similarly, Andreas Nicolas Bornman was prevented from hyphenating his surname with that of his wife, Jess Donnelly, to become Donnelly-Bornman.
In its unanimous judgment, the court said the restriction amounted to gender-based discrimination.
“In many African cultures, women retained their birth names after marriage, and children often took their mother’s clan name,” the justices observed. “This changed after the arrival of European colonisers and Christian missionaries, and the imposition of Western values.”
The court traced the practice of wives taking their husband’s surname to Roman-Dutch law, noting that it was a colonial import that entrenched patriarchal customs in South African common law.
It further stated:
“South Africa has made significant advancement in gender equality, but some laws and practices that perpetuate harmful stereotypes still remain.”
Neither Home Affairs Minister Leon Schreiber nor Justice Minister Mamoloko Kubayi opposed the application, acknowledging that the law was outdated. The Free State Society of Advocates also supported the challenge, arguing that denying men the right to assume their wife’s surname perpetuated stereotypes by restricting a choice available to women.
The decision marks another step in South Africa’s ongoing efforts to dismantle colonial-era laws and align its legal system with the equality principles enshrined in the 1994 Constitution.
