On 11 September 2025, South Africa’s Constitutional Court unanimously ruled that husbands can now take their wives’ surnames without needing approval, striking down gender-discriminatory provisions in the Births and Deaths Registration Act. Justice Theron’s judgment declared the law unconstitutional, labelling it a remnant of patriarchal norms. This landmark decision, advancing equality under the post-apartheid Constitution, stems from a challenge by two couples.
Background
South African law, rooted in colonial traditions, allowed women to take their husbands’ surnames, revert to a maiden name, or hyphenate without permission under Section 26(1)(a)-(c) of the Act. Men, however, needed Department of Home Affairs approval to take their wives’ surnames, per Regulation 18(2)(a) of 2014. This disparity entrenched gender stereotypes, positioning the husband’s surname as the default.
The Case: Jordaan and Others v Minister of Home Affairs
In Jordaan and Others v Minister of Home Affairs (CCT 296/24), several couples on the cusp of their relationships, challenged the law’s inequality under Sections 9(1) and 9(3) of the Constitution. Van der Merwe was denied taking “Jordaan” for himself and their child, while Donnelly-Bornman and Bornman wanted to hyphenate as “Donnelly-Bornman” to honour her family ties. The Bloemfontein High Court ruled the provisions unconstitutional, suspending invalidity for 24 months and applying gender-neutral interim terms. The Free State Society of Advocates supported the couples, arguing the law reinforced harmful stereotypes.
The Constitutional Court, using the Harksen v Lane equality test, found the gender differentiation lacked purpose—surname regulation didn’t justify restricting men, as changes were limited to spousal surnames. The law harmed both genders: men lost choice, and women faced reinforced patriarchal norms. Deemed unjustifiable under Section 36, the court suspended invalidity for 24 months for parliamentary fixes, adopting inclusive Civil Union Act terms (“spouses,” “partners”) for the interim. It rejected automatic child surname changes, requiring applications under Section 25(2), and ordered costs against the Home Affairs Minister.
Impact
The ruling dismantles patriarchal traditions, allowing couples to choose surnames for personal or cultural reasons. Celebrated for promoting dignity and inclusivity, it aligns with South Africa’s transformation from apartheid-era inequalities, though it may challenge traditional norms.
