Men can now assume their wives' surnames after the Constitutional Court ruled on Thursday that section 26(1) of the Registration of Births and Deaths Act is unconstitutional as it unfairly discriminates on the basis of gender.
Judge Leona Theron ruled that the act is unfair as it fails to afford men the right to assume their wives’ surname.
The ruling comes after two Free State women and their husbands challenged the constitutionality of the act and won in the lower court. They then decided to take the matter to the apex court, saying the act is, among other things, archaic and patriarchal.
The first couple, Jana Jordaan and Henry van der Merwe, were married in 2021 but were unable to have the husband assume the wife's surname due to department of home affairs restrictions. Their daughter carries a surname they did not intend to be their family name.
The second couple, Jess Donnelly-Bornman and Andreas Bornman, married in 2022 and faced similar issues when trying to have the husband adopt a hyphenated surname combining both their surnames.
The two couples argued that the act and the regulations perpetuate gender norms set by a patriarchal society that entrenches gender inequality.
They sought to have relevant sections of the act and regulations declared unconstitutional for unfairly discriminating against men in surname changes related to marriage. They argued that the current law is archaic, patriarchal and incompatible with constitutional values of equality regardless of sex, gender or marital status.
They then approached the Free State High Court where judge Joseph Mhlambi ruled in their favour.
The first couple had discussed the issue of the surnames when they started dating in 2014 and had always intended that the husband would assume the wife's surname should they get married. That is because it was her biological parents' surname and symbolised her connection to them.
They died when she was four years old. She had no intention of ever changing her surname, and she explained this to her now-husband at an early stage of their relationship, around 2014, the court heard.
Regarding the second couple, Donnelly-Bornman is an only child who has stated that her maiden surname is important to her.
“Before their marriage, she informed Bornman that she preferred to keep her maiden surname and would rather hyphenate his surname with her own. Both did not wish to have different surnames from each other and their children. They preferred to combine their surnames to reflect their familial unit.
They were married on April 2 2022 in Knysna. On completing their marriage certificate, they realised that though a provision was made for the female spouse to change her surname, no such provision existed for the male spouse.
The court was satisfied that the provisions are inconsistent with the constitution due to gender-based discrimination, which negatively affected both men and women
The Free State Society of Advocates joined the challenge as amicus curiae (friends of the court) and argued that by restricting a man's right to assume their wife's surname, the law violated the principles of gender equality and perpetuated harmful stereotypes, as men are denied a choice that is available to women.
The court had to determine whether the act and its regulations unfairly discriminated based on gender and violated constitutional equality rights.
The court was satisfied that the provisions are inconsistent with the constitution due to gender-based discrimination, which negatively affected both men and women.
In the case of men, they are deprived of the ability to take their wives’ surnames if they so wish.
“In the case of women, the effects of this scheme are far more insidious. It is not merely so that they are deprived of the right to have their surnames serve as the family surname where their husbands wish to take that surname. It also reinforces patriarchal gender norms, which prescribe how women may express their identity, and it makes this expression relational to their husband, as a governmental and cultural default,” the ruling stated.
The court found that this limitation of equality cannot be sustained under section 36 of the constitution.
Section 26(1)(a)-(c) of the Births and Deaths Registration Act and regulation 18(2)(a) of the related regulations were declared unconstitutional.
The declaration of invalidity was suspended for 24 months to enable the president and his cabinet, together with parliament, to remedy the defects by either amending existing legislation, or passing new legislation within two years to ensure that male people are afforded the right of assumption of another surname.
The first couple also sought an order directing the home affairs ministry to amend the surname of their child to “Jordaan”.
The court found that no case was made out in the high court, or in the ConCourt, why this relief should be granted.
This was because the declaration of invalidity pertains to the violation of the right to equality on the ground of gender, in the specific context of marriage. “It cannot follow, as a matter of course, from the declaration of invalidity that a child whose surname is determined under a different provision of the act may have their surname changed following such declaration.”
However, the couple were entitled to apply to the director-general to change their child’s surname.
SowetanLIVE, additional reporting by TimesLIVE
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