In this case, two couples sought the right for the husbands to adopt their wives’ surnames. <\/p>\n\n\n\n
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. <\/p>\n\n\n\n
However, the Department of Home Affairs denied both requests, stating that the law did not permit such changes. <\/p>\n\n\n\n
They were told they would need to apply to the Director General and provide sufficient reasons for the name change.<\/p>\n\n\n\n
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. <\/p>\n\n\n\n
They argued that it discriminates on the grounds of gender by not:<\/p>\n\n\n\n
- \n
- Giving a woman the right to have her spouse take her surname;<\/li>\n\n\n\n
- Allowing a man to take his wife’s surname after marriage, or go back to a surname he used before marriage.<\/li>\n\n\n\n
- Allowing a divorced or a widowed man to resume any surname he previously used;<\/li>\n\n\n\n
- Letting a man, whether married, divorced, or widowed, add a surname he had before marriage to the one he assumed after marriage.<\/li>\n<\/ul>\n\n\n\n
They further argued that it is unfair that a man\u2019s surname change after marriage is subject to the approval of the Director General under Section 26(2) of the Act.<\/p>\n\n\n\n
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.<\/p>\n\n\n\n
The Court agreed that the Births and Deaths Registration Act was discriminatory based on gender, and gave Parliament two years to amend the Act. <\/p>\n\n\n\n
![\"\"](\"https:\/\/businesstech.co.za\/news\/wp-content\/uploads\/2023\/09\/South-Africa-High-Court-1024x683.jpg\")
<\/a><\/figure>\n\n\n\nIn the meantime, Legal expert, Richard Chemarly, explained to eNCA<\/a> that husbands wanting to take their wives\u2019 surnames can either \u201cwait a bit, or they can just hope and try with their local Home Affairs department.\u201d <\/p>\n\n\n\n
\u201cThe 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.\u201d<\/p>\n\n\n\n
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. <\/p>\n\n\n\n
While the Court\u2019s 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. <\/p>\n\n\n\n
\u201cA lot of us just assumed that you could take your wife\u2019s name, or your female spouse\u2019s name, if you wanted to.\u201d<\/p>\n\n\n\n
\u201cA lot of us are amazed that it wasn\u2019t there already. Now we\u2019ve got another two years to wait.\u201d<\/p>\n\n\n\n
\u201cFor the time being, it\u2019s on the right track. It\u2019s one of those things that as I say should have been done quite a while ago, you almost expected that it was done.\u201d <\/p>\n\n\n\n