Big changes for marriage laws affecting surnames in South Africa
In a recent landmark ruling, two husbands won the right to adopt their wives’ surnames.
This groundbreaking judgement by the Bloemfontein High Court has sparked widespread debate.
In this case, two couples sought the right for the husbands to adopt their wives’ surnames.
One couple wanted the husband to take his wife’s surname, while in the other, the wife had chosen a hyphenated surname, and the husband wished to adopt that hyphenated name.
However, the Department of Home Affairs denied both requests, stating that the law did not permit such changes.
They were told they would need to apply to the Director General and provide sufficient reasons for the name change.
As a result, the couples took the Department of Home Affairs to court seeking an order to declare section 26(1)(a)-(c) of the Births and Deaths Registration Act unconstitutional.
They argued that it discriminates on the grounds of gender by not:
- Giving a woman the right to have her spouse take her surname;
- Allowing a man to take his wife’s surname after marriage, or go back to a surname he used before marriage.
- Allowing a divorced or a widowed man to resume any surname he previously used;
- Letting a man, whether married, divorced, or widowed, add a surname he had before marriage to the one he assumed after marriage.
They further argued that it is unfair that a man’s surname change after marriage is subject to the approval of the Director General under Section 26(2) of the Act.
They also requested the court to declare Regulation 18(2)(a) of the 2004 Regulations on the Registration of Births and Deaths unconstitutional, arguing that it discriminates against men by not providing for changes in a man’s marital status.
The Court agreed that the Births and Deaths Registration Act was discriminatory based on gender, and gave Parliament two years to amend the Act.
In the meantime, Legal expert, Richard Chemarly, explained to eNCA that husbands wanting to take their wives’ surnames can either “wait a bit, or they can just hope and try with their local Home Affairs department.”
“The law basically has changed, but the provision changing the law has been suspended for two years to allow parliament and the presidency to remedy the issue.”
While the judiciary has the power to tell Parliament that a certain law is not compatible with the Constitution, it does not have the power to say how the law must be changed, specifically.
While the Court’s decision has been met with some controversy, Chemarly explained that for many people, it was a shock to learn that this case was even necessary in the first place.
“A lot of us just assumed that you could take your wife’s name, or your female spouse’s name, if you wanted to.”
“A lot of us are amazed that it wasn’t there already. Now we’ve got another two years to wait.”
“For the time being, it’s on the right track. It’s one of those things that as I say should have been done quite a while ago, you almost expected that it was done.”
Professor in the Public Law department of the University of Cape Town, Waheeda Amien, echoed this sentiment, telling Newzroom Afrika that this is a step in the right direction.
“I think that it’s a progressive decision it’s a decision that recognises that this was still an instance of patriarchy being reinforced and that it was a case of unfair discrimination based on gender and sex.”
If a woman wishes to revert to her maiden name, adopt her husband’s or take a hyphenated surname, she follows a straightforward administrative process.
“But the man doesn’t have that option, his process is actually more onerous. He’s got to apply to the Director General of Home Affairs and show that he has sufficient reasons for his surname to be changed.”
Once the law changes, a man will also have the same right to simply go to Home Affairs, fill in a form saying he want to change his surname, pay the admin fee, “and then Bob’s your uncle.”
Essentially, Amien explained, “the judgement is saying that both parties to the marriage should have the right to choose what their surname should be.”
“You shouldn’t have to go through a marriage having a name imposed on you.”
“You should be able to make that choice.”
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