Men in South Africa can now Assume their Wive’s Surname

Introduction

The purpose of this article is to discuss the legal foundations and implications of the new law in this topic. Additionally, the article will bring more awareness as to how the impact stem of South Africa around identity.

According to the concept of marriage, it entails a partnership amongst two parties who commit to spending the rest of their lives together in partnership and parity. Be that as it may, South African law did not seem to match this concept. The norm has been that wives easily adopt their husband’s surname, but in contrast, men would have difficulty in doing the same. Subsequently, couples would decide to abandon this pursuit as they know that their request to have the man assume the wives’ surname would be declined by the 1 Department of Home Affairs (DHA). The Births and Deaths Registration Act 51 of 1992 (“the Act”) long guided the legal framework when coming to choosing surnames in that the Act has continued to uphold a patriarchal tradition in differentiating men and women when choosing their family name. In the case of women, it was easier for her upon marriage to assume her husband’s surname, revert to the surname she had prior or even have a double-barrel surname without needing the special approval of the Director- General (DG) of the DHA.

In contrast, for men the Act does not include any of these benefits. If a man wanted to assume his wife’s surname, it was not as automatic. He had to apply for special approval to the DG by also providing suffice reasons as to why he wanted that because the Act did not include men in the privilege of choosing a surname(s) in their marital status. Owing to the nation’s colonial history, our law is modeled after the Roman-Dutch law and the English law hence the concept of a woman’s identity being recognized through her husband upon marriage. The idea of a wife being submissive to her husband found its roots in this tradition which many believe it to have continued to promote inequality in the home and shaped the legal framework of South Africa even post colonialism (or in context, 3‘apartheid’). Nevertheless, South Africa abandoned the concept of marital power, but the Act continues to perpetuate that gender discrimination and old tradition in the marital home.

Things have changed now. The 4 Constitutional court in on its ruling on Thursday,11 September 2025, ruled that the Act based on gender promotes inequality (as per section 9 of the Constitution) as it unfairly discriminates against the men and prevents equality in the marriage. Thus, it is unconstitutional. The ruling aims to close the gaps existing legally in marriages so that couples have the freedom of choice (as per section 12 of the 5Constitution) in deciding which surname they want to have.

Article 26 of the 6International Covenant on Civil and Political Rights (ICCPR) protects against gender-based discrimination as it states a person’s privacy, family, home or correspondence must be respected and not have arbitrary or unlawful interferences in their affairs.

In other words, men are treated unfairly as opposed to women when it comes to the issue of assuming surnames.

Background of the ruling explained

The initial story started after two couples from the province of Free State challenged the constitutionality of the legal principle and won in the lower court. Subsequently, the couple further pursued the matter by taking it to the Constitutional Court asserting that the act is discriminatory and old.

In the matter between 7Jordaan and Others v Minister of Home Affairs and Another [ 2025] ZACC 19:

The first two applicants, which are Jana Jordaan and Henry Van Der Merwe – couple number one – got married in 2021 but since it is illegal in our law to do so, ultimately, the DHA will decline the request. As a result, their daughter assumes a surname they did not want for her.

The second two applicants, which are Jess Donnelly-Bornman and Andreas Bornman – couple number two – got married in 2022 so the couple wanted to have the husband assume a double-barrel surname by combining both surnames could not achieve this because of the same legality issue around marriages.

Both couples assert that the Act and regulations promote gender discrimination on the grounds of gender and sex, which advisedly contradict the constitutional right to equality. They filed a civil matter with the Free State high court and whereupon, the presiding judge Joseph Mhlambi ruled in favor of the couples.

Mhlambi J – in his judgement – mentioned that Jana Jordaan and Henry Van Der Merwe – couple number one – prior to getting married in their dating phase back in 2014 had discussed their desire to have the man assume the wife’s surname if they get married. The reason being that her surname was her biological parents’ surname and felt she needed to keep it as it symbolized her connection to them.

According to Mhlambi J:

“They passed away when she was four years old. She has no intention of ever changing her surname, and she explained this to the second applicant at an early stage of their relationship, around 2014,”.

Hereof Jess Donnelly-Bornman and Andreas Bornman – couple number two – Donnelly-Bornman is the only child born so it is important for her she keeps her surname unchanged.

According to Mhambi J:

“Before their marriage, she informed [her husband Bornman] that she preferred to keep her maiden surname and would rather hyphenate [Bornman’s] 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 realized that though a provision was made for the female spouse to change her surname, no such provision existed for the male spouse,”

The Free State Society of Advocates supports the stance

As amicus curiae – in other words, friends of the court – the Free State Society of Advocates supported the matter and asserted that the refusal to give men the right to assume their wives surname is a direct gender inequality as it violates the law. They argue that, why is it that it is easy for woman to assume the husband’s surname, but reverse is the case for men?

As a result, it was in the courts duty to now decide whether the regulations and Act are unconstitutional and unfairly discriminated against the men applicants on the grounds of the right to equality.

Mhlambi J rejected the defence. He ruled that he was satisfied that the two couples have the right to assume their wives’ surname as they hold dear to themselves and that indeed, the act and regulations violate the provisions of the constitution because they discriminate on the grounds of gender.

Interim order ruled with immediate effect

The ConCourt has decided to issue an interim order with immediate effect. Parliament must within 24 months change the Act whilst in the meantime, the interim order remains legally binding.  Further, if a person walked into the Department of Home Affairs (DHA) with the necessary documents to assume his wives’ surname, the DHA must change his surname. It is now lawful.

DHA must now do the following:

• Take applications of men who desire to assume their wives’ surname.
• Allow any spouse to combine both surnames by creating a double-barrel surname in any order.
• Allow any spouse to change back to their old surname either by choice or after getting married again.

Further, should parliament fail to change the Act in 24 months, the abovementioned mandate must be carried out by DHA until a new law is passed to align with the ruling of the constitutional court.

Qualifying people and different options

There are three types of legally recognized marriages in South Africa which are the; civil marriages under the Marriage Act, civil unions, and customary marriages. The interim order is applicable to these marriage systems.

What this means is that the man may now assume his wife’s surname or anyone of the spouses may decide to assume a double-barrel surname. Further, anyone of the spouses may choose to change back to their old surname if that is what they desire. This speaks to allowing for equality in the marriage and the available options man now have in contrast to the past gender discriminatory Act and regulations.

Process to changing your surname now

Since the application process is administrative and not judicial, the DHA is responsible for this task. To ensure that the application is not rejected, documents must be accurate and complete.

Step 1. Complete the form

The prescribed form is Form BI- 196 (Application for the Alteration of the Surname of a   Major)

Step 2. Gather your supporting documents

• A certified copy of your ID.
• Marriage certificate.
• If reverting to old surname (old ID, unabridged birth certificate)
• Proof of residence

Step 3. Submit documents at Home Affairs

File the application at your nearest DHA office. Application process may take up to 8-12 weeks.

Step 4. Fee payment

R80 for adults. It is advised to keep a record of your proof of payment.

Step 5. Issuing process and completion

Once successful, DHA must update the population register and issue your new ID. Subsequently, you may proceed to apply for an updated version of your driver’s license or passport, for example.

It is also advised that one refers to the Constitutional Court interim order to make aware the official processing of the application of the legality of the matter.

Further records to update

It is important that after one change their name take into consideration updating other essential documents at their respective institutions. These include the following:

• South African ID – First and foremost, a new ID must be issued first.
• Passport – Apply for a new passport using the ID that shows your new surname.
• Bank Accounts – Provide your financial service provider with your updated ID to change bank details.
• SARS – Provide your new ID at the South African Revenue Services at a near branch or through eFiling.
• Driver’s Licence – Apply for a new license.
• Deeds Office – Inform the Deeds Registry if you own property.
• Employer and Pension Funds – Inform HR, update payroll and retirement documents.
• Other Records – Insurance policies, medical aids, and other bodies such as the 8HPCSA, 9LPC and 10

What about children and additional family documents

When the husband or wive changes their surname, it does not automatically change the surname of the children. The children continue to bear the surname they have on their birth certificate. A different application should be made if the parents desire to change the child’s surname.

DHA will provide the parents with Form BI – 193 (Application for the Alteration of the Surname of a Minor). If the names of both parents are written on the child’s birth certificate, they must consent. However, if one parent has sole guardianship or a court order says otherwise.

It is advised that other family documents such as children’s schools, beneficiary’s packages etc. to are updated to avoid problems when traveling, wanting to claim, or estate division when the time comes.

Dealing with possible arising issues about the child

• If a 16-year-old child refuses to assume the surname suggested by the parent, the surname remains the same until they agree.
• If parents fight about the child’s surname, they should resolve the issue in court.
• If school and medical documents are not updated, it may cause complication for the child administratively at the later stage. It should be handled early.

Immigration implications

Planning in advance and seeking the guidance from a legal practitioner is crucial when dealing with cross-border situations because extra sensitivity and security must be considered.

For people who hold dual citizenship or are in the process of immigrating, surname changes are crucial at this stage. Whilst South African Authorities may update your essential documents like ID and passport, it will not reflect on the foreign records that you have a new surname.

People with dual citizenship are required to apply in their other respective country in a separate process. Respective foreign countries may require one to not only provide their South African ID and passport but the court’s interim ruling as well.

In the process of getting your documents finalized, prior to making travel arrangements and accommodation bookings, notify the embassy quickly about your current application process to update your visa etcetera. It is advised that those arrangements are not yet made whilst this immigration process is underway.

Conclusion

The Jordaans Judgement is a landmark ruling that has ever changed the landscape of equality in marriages in South Africa. In essence, families now have power to choose which surname best suits their beliefs, desires and values without being limited by the restrictions set by the old systematic gender stereotypes. The ruling is significant to many as they feel it aligns with the constitutional values entrenched in the Bill of Rights, particularly the right to equality, dignity and freedom. Now, both me and women have stand on an equal footing when it comes to surnames as it helps shapes their identity.

BIBLIOGRAPHY

Books

The Constitution of the Republic of South Africa, Act 108 of 1996.

Legislation

Registration of Births and Deaths Act 51 of 1992.

Marriage Act 21 of 1961.

Case Law

Jordaan and Others v Minister of Home Affairs and Another [ 2025] ZACC 19.

Official Websites

South African Legal Information Institute, JORDAN AND OTHERS V MINISTER OF HOME AFFAIRS AND ANOTHER (CCT 296/24) [2025] ZACC 19 (11 SEPTEMBER 2025), (Sept. 11, 2025), Jordaan and Others v Minister of Home Affairs and Another (CCT 296/24) [2025] ZACC 19 (11 September 2025)

Botho Molosankwe and Tina Hokwana, HUSBANDS CAN NOW LEGALLY TAKE WIVES’ SURNAME, CONCOURT RULES,  Sowatan Live (Sept. 11, 2025, 10:26 AM), POLL | Husbands can now legally take wives’ surnames, ConCourt rules

Roy Bragman, A LANDMARK RULING FOR EQUALITY: MEN CAN NOW TAKE THEIR WIVE’S SURNAMES IN SOUTH AFRICA, Bragman Moodley, (2025), Learn More About Surname Change South Africa | Bregman Moodleys

Journal Article

International Covenant on Civil and Political Rights (adopted 19 December 1966, entered into force 23 March 1976) 999 UNTS 171 arts 26.

1 Department of Home Affairs (Hereafter referred to as “the DHA”).

2 The Births and Deaths Registration Act 51 of 1992 (Hereafter referred to as “the Act”).

3 Apartheid was a racial system of segregation and white supremacy in South Africa from 1948 to 1991.

4 The Constitutional Court (Hereafter referred to as the ConCourt).

5 The Constitution of the Republic of South Africa, Act 108 of 1996.

6 International Covenant on Civil and Political Rights (Hereafter referred to as “ICCPR”)

7 Jordaan and Others v Minister of Home Affairs and Another [ 2025] ZACC 19: (Hereafter referred to as the Jordaans judgement)

8 HPCSA is an acronym for Health Professions Council of South Africa.

9 LPC is an acronym for Licensed Professional Counselor.

10 SAICA is an acronym for South African Institute of Chartered Accountants.