Authored By: Riemano Titus
University of Fort Hare
Abstract
Traditionally, South African spousal practices and legal structure were embedded in patriarchal traditions, whereby the woman’s identity was habitually subsumed by her husbands upon marriage. Nevertheless, the sunrise of the constitutional era has demanded a revolutionary reimaging of gender roles and administrative practices. This article analyses the legal landscape bordering the right of a husband to adopt his wife’s surname in Republic of South Africa (RSA). It delves the meeting point of the Births and Deaths Registration Act 51 of 1992, the Civil Union Act 17 of 2006, and the comprehensive constitutional mandates of equality and non-discrimination. By examining the latest adjudicative changes and the Department of Home Affairs (DHA) regulations, this paper opposes that the shift towards gender-neutral surname selection is not barely a subject of administrative convenience but a primary prerequisite for substantive equality.
- Introduction
The option of a surname is personal dimension of human identity, mirroring heritage, family ties, and individual self-governance. In South Africa, nevertheless, this option was traditionally limited by gender based regulatory systems that emphasise the husband’s surname as the default family identifier. The unyielding conformity to patriarchal naming traditions began to conflict with Section 9 of the Constitution of the republic of South Africa, 1996, which ensures equality and forbids discrimination based on gender or sex. The question of whether a husband may adopt his wife’s surname or whether a couple can produce a “double-barrelled” name has shifted from a social stigma to a notable legal exchange. For years, the Births and Deaths Registration Act 51 of 1992 (the Act) operated as a legislative fragment of patriarchal Roman – Dutch law aiding name changes for women upon marriage while withholding men the same entitlement
This article analyses the latest constitutional triumph and shift pertaining to spousal naming rights in South Africa. It emphasizes on the landmark judgement of Jordaan and Others vs Minister of Home Affairs and Another which overturned the discriminatory provision of the Act. By examining the meeting point of the right to equality, human dignity and the dismantling of colonial-period systems, this article opposes that the acknowledgment of a husbands right to adopt his wife’s surname is a mandatory step in South Africa’s pivotal constitutional project.
2. The Legislative Structure: Guiding the Statutory Puzzle
2.1 Section 26 of the Births and Death Registration Act 51 of 1992 (BDRA)
To comprehend reason why men in South Africa have traditionally encountered obstacles in altering their surnames upon marriage, one must examine principal legislation governing names; the Births and Death Registration Act of 1992
Traditionally Section 26 of the BDRA was drafted with a gendered bias. It clearly supplies systems for a woman to assume her husband’s surname, link it with her own (double barrelled), or return to prior surname without the desire for a formal, burdensome application to the Director-General.
Alternatively, no such optimized clause existed for men. For a man to adopt his wife’s surname, he was commonly obliged to undergo the strict process outlines in Section 27 which involves to the “altercation of surnames” in common cases. This needed conformation “good and sufficient” reason paying higher fees, and persistent prolonged operational postpones; requirements that were not imposed on women.
2.2 The Civil Union Act 17 of 2006
The introduction of the Civil Union Act marks a crucial moment. Contrary to the Marriage Act of 1961, the was designed to be gender-neutral to adapt to same-sex couples. It unintentionally highlighted the absurdity of gender-based naming restrictions. If two men or two women could choose which surname to use under a civil union, the refusal of that same choice to a man in a heterosexual marriage under the Marriage Act become a clear instance of unfair discrimination.
3. Constitutional Imperative and the Right to Equality
The South African Constitution is the “Supreme law of the Republic”, and any law or conduct which is inconsistent with it is invalid. The Two primary constitutional rights are at a play regarding spousal surnames is Section 9 and Section 10 of the Constitution
3.1 Section 9 (The Right to Equality)
Section 9(1) of the Constitution states that “Everyone is equal before the law and has the right to equal protection and benefit of the law”. Furthermore Section 9(2) of the Constitution states “Equality includes the full enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. The state may not unfairly discriminate explicitly or implicitly against anyone on grounds covering gender, sex, or spousal status. By producing it easier for a wife to alter her name than a husband, the state supports the stereotype that the male identity is the “primary” identity in a marriage.
3.2 Section 10 (Human Dignity)
Section 10 of the Constitution states that “Everyone has an inherent dignity and the right to have their dignity respected and protected”. A person’s name is an essential part of their personhood. Compelling a man to maintain his surname when he wishes to adopt his wife’s for personal culture, or professional reasons can be seen as a violation on his right to dignity.
4. Landmark Catalyst for Reform: Jordaan vs Minister of Home Affairs
4.1 The Facts and Opposition
The case was introduced two couples who encountered administrative reject from the Department of Home Affairs. Jana Jordaan and Henry van der Merwe desired for Henry to take Jana’s surname to maintain her family lineage. Jess Donnely- Borman and Andreas Borman desired a joined surname. Both demands were refused because the “system” only allows such altercations for female spouses
The Applicants opposed the constitutionality of Section 26 (1)(a)- (c) and Regulations 18(2)(a), disputing that these provisions infringed their rights to equality and dignity.
4.2 The Equality Test
The Court submitted the established test for unfair discrimination set out in the case of Harkson vs Lane No The test seeks whether the law decern between people, whether that discernment amounts to discrimination on a listed ground (gender and sex), and whether that discrimination is unfair
The Court established that the Act clearly discerned based on gender because gender is a listed ground under Section 9 (3) of the Constitution of the Republic of South Africa, 1996, the discrimination was assumed to be unfair. The state failed to supply a reasonable link between the gender of a spouse and the goal of sustaining a true population register. If the register can accommodate a women altering her name without “chaos”, there is no reason it cannot do the same for men
4.3 The infringement of Dignity
The Court further held that compelling a husband to maintain his surname against will, while enabling a wife’s change of name. violates upon the right to dignity under section 10 of the Constitution. Theron J stated that a name is more than a label; it is a “central component to an individual identity”. By rejecting men the self-governance to choose their family name, the law treated them as “inferior” in the context of personal identity expression.
5. The remedy and its implications
5.1 Declaration of invalidity and Reading-in
The Constitutional Court confirmed the High Court’s order, stating section 26(1)(a)-(c) of the Act unconstitutional. To remedy the swift bias while allowing Parliament time to amend the legislation, the Court ordered temporary “reading in” of gender-neutral language.
The provision is now read as follow:
“A person may…assume the surname of the spouse with whom he or she concludes such marriage…”
This remedy successfully broadens the rights previously reserved for women to all spouses, including those in same-sex marriages and civil unions.
5.2 Impact on Family Law and Society
The Jordaan case judgement represents a significant change in South African Family Law. It Recognizes that marriage is a partnership of equals where neither spouses’ identity is greater. In administrative equality, Home Affairs must now process name-changing requests. In cultural preservation, the ruling grants the preservation of maternal lineages, which is notably significant in families where there are no males heirs to “carry on” a surname. In same-sex rights, it finally corresponds to the Births and Deaths Registration Act with the Civil Union Act 17 of 2006, which already applied more inclusive language.
Conclusion
The Births and Deaths Registration Act still contain traces of a patriarchal past; the Constitution supplies the essential tools to circumvent these constraints. The Jordaan judgement is a solid validation of the transformative nature of the South African Constitution. By ruling out section 26(1) of the Births and Deaths Registration Act, the Court has broken down a delicate yet compelling form of gender discrimination. This ruling clarifies that the state may not pressure patriarchal naming traditions through legislation, nor may it hinder the personal autonomy of citizens based on gendered stereotypes. While parliament has 24months from the date of the judgment to legitimise these changes, the temporary reading-in ensures that equality is no longer held back.
Currently it is legal that a husband in South Africa has the right to adopt his wife’s surnames. On the other hand, for this right to be fully materialize, the Department of Home Affairs must prove past the point of reactive changes compelled by litigation and proactively reform its systems to secure that the process for men is a cohesive and affordable as it is for women. Real equality requires that the “choice” of a marital surname be a shared liberty, unrestricted from a state-imposed gender role. The legal framework in South Africa has officially adjusted from patriarchal traditional to constitutional compliance. While the legislation is being amended to mirror gender objectivity, the courts have made it transparent: the right to choose a family name belongs to the individual, not the to a specific gender.
Bibliography
Statutes
Section 9 of the Constitution of the republic of South Africa, 1996.
Section 2 of The South African Constitution, 1996.
Section 26 Births and Deaths Registration Act 51 of 1992.
Section 27 Births and Deaths Registration Act 51 of 1992.
Civil Union Act 17 of 2006.
Caselaw
Jordaan and Others vs Minister of Home Affairs and Another [2025] ZACC19.
Harkson vs Lane No [1997] ZACC 12.
Online Journals
Bertus Preller, “Family Law South Africa” Constitutional Court Ends Gender-Based Surname Discrimination: Jordaan and Others v Minister of Home Affairs and Another (CCT 296/24) [2025] ZACC 19 (11 September 2025) – Husbands Can Now Take Their Wives’ Surnames. – Family Laws South Africa accessed on 01 February 2026
Tamryn Delport “A Step Toward Equality: Constitutional Court Invalidates Dated Surname Law” A Step Toward Equality: Constitutional Court Invalidates Dated accessed on 01 February 2026.
