South Africa’s Constitutional Court has ruled that a law preventing men from taking their wives’ surnames or hyphenating their names with those of their wives amounts to unconstitutional gender-based discrimination.
The judgment upheld challenges brought by two married couples who were denied the right to change their legal surnames. One applicant, Henry van der Merwe, sought to take the surname of his wife, Jana Jordaan, and was refused. The other, Andreas Nicolas Bornman, wished to hyphenate his surname to include Donnelly, the surname of his wife, Jess Donnelly-Bornman. Public broadcaster SABC reported that both couples asked the Constitutional Court to confirm an earlier ruling in their favour from a lower court.
The court said the Births and Deaths Registration Act and its regulations, as written, discriminated on the basis of gender by prohibiting husbands from taking or combining their wives’ names while allowing wives to take their husbands’ names. The ruling requires Parliament to amend the act and its regulations for the decision to take practical effect.
The case was brought after the couples were refused changes by the relevant registration authorities and won at a lower court, which found the provisions discriminatory. Rather than accept the lower court decision as final, the couples sought confirmation from the Constitutional Court to remove any doubt about the law’s validity. The top court’s judgment provides that the discriminatory provisions cannot stand and that legislative amendments must be made.
Legal scholars and equality advocates said the ruling clarifies the scope of constitutional protections against sex-based discrimination in family law and civil registration. Until Parliament enacts the required amendments and updates the registration regulations, the practical mechanisms for altering surnames in official records will remain subject to existing administrative rules.
The decision addresses a narrow statutory scheme governing how surnames may be recorded on birth and marriage documentation. It does not alter other laws governing name changes through the formal change-of-name process, which remains available to any citizen under existing procedures.
Parliament must now draft and pass amendments to bring the act and its regulations into compliance with the Constitutional Court ruling. Lawmakers and government agencies will determine the timing and administrative steps necessary to give effect to the change, including updates to registration forms, processes and guidance for officials handling surname changes.