South Africa’s Constitutional Court has ruled that husbands can now adopt their wives’ surnames, overturning a long-standing law that previously barred them from doing so.
The court described the law as a “colonial import” that amounted to gender-based discrimination, marking a victory for two couples who brought the case forward.
One of the men, Henry van der Merwe, was denied the right to take his wife Jana Jordaan’s surname, while Andreas Nicolas Bornman was prevented from hyphenating his surname with that of his wife, Jess Donnelly-Bornman, according to public broadcaster SABC.
Parliament will now be required to amend the Births and Deaths Registration Act and its regulations for the ruling to take effect. The contested law was introduced during South Africa’s era of white-minority rule.
The couples had argued that the legislation was archaic, patriarchal, and in violation of the equality rights enshrined in South Africa’s democratic constitution adopted after apartheid in 1994. They initially succeeded in a lower court and sought confirmation from the Constitutional Court.
In its ruling, the court noted that in many African cultures women traditionally retained their birth names after marriage, and children often carried their mother’s clan name. This only changed with the arrival of European colonisers, Christian missionaries, and the imposition of Western values.
The custom of wives adopting their husbands’ surnames, the court explained, stemmed from Roman-Dutch law and was reinforced by colonial legislation across Africa.
While acknowledging that South Africa has made “significant advancements” in gender equality, the court stressed that certain laws and practices continue to perpetuate “harmful stereotypes.”
Neither Home Affairs Minister Leon Schreiber nor Justice and Constitutional Development Minister Mamoloko Kubayi opposed the application, agreeing that the law was outdated.
The Free State Society of Advocates also supported the case, arguing that by restricting men from assuming their wives’ surnames, the law denied them a choice already available to women and reinforced discriminatory stereotypes, the Sowetan reports.
