In a resounding win for gender equality, the ConCourt has unanimously declared that certain provisions of the Births and Deaths Registration Act (‘the Act’) are unconstitutional for failing to allow men to assume their wives’ surnames after marriage.
Following a seminal High Court ruling in 2024, the ConCourt in Jordaan v Minister of Home Affairs was tasked with confirming the constitutional invalidity of section 26(1) of the Act and regulation 18(2)(a) of the Regulations. Critically, section 26(1) limits surname changes to the following instances:
- A woman may assume her spouse’s surname after marriage;
- A married, divorced, or widowed woman may resume a previous surname; or
- A woman – whether married, widowed, or divorced – may add a previous surname to her marital surname.
Regulation 18(2)(a) expressly confirms that one reason for assuming another surname must concern ‘a change in the marital status of a woman’. In light of these gendered provisions, the two couples at the centre of the case argued that current law discriminates against men on the basis of gender by preventing them from assuming their wives’ surnames.
In a progressive and considered judgment, the ConCourt assessed the socio-historical context of women assuming their husbands’ surnames post-marriage and applied the two-stage test set out in Harksen v Lane to determine whether the impugned provisions violate the constitutional right to equality. Finding that differentiating between men and women in this context serves no legitimate government purpose, the Court confirmed that section 26(1) unfairly discriminates against men in heterosexual marriages and is thus invalid.
Significantly, the ConCourt recognised the ‘insidious’ impact of these limitations on women, which have reinscribed patriarchal norms and denied them the right to have their surnames serve as the family name.
While Parliament has 24 months to remedy the defect, the Court ordered an interim reading in of ‘persons’ and ‘spouses’ under section 26(1) of the Act in place of gendered terms such as ‘wives’ and ‘husbands’. This interim solution, which adopts the gender-neutral language of the Civil Union Act, will prevent further unfair discrimination pending legislative amendments. Importantly, it allows men to immediately adopt their wives’ surnames.
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