Authored By: Tetelo Choshi
University of Fort Hare
Abstract
Traditionally, women have taken their husbands’ surnames upon marriage — a reflection of patriarchal values that have become deeply ingrained in society. South African law has, however, undergone significant development since 1996, with the Constitution placing emphasis on equality, dignity, and freedom of identity. This article examines whether husbands can legally adopt their wives’ surnames. It argues that this choice is both constitutionally protected and legally permissible. The article demonstrates that choosing a surname upon marriage is a matter of personal preference rather than gendered obligation. Although the law allows husbands to take their wives’ surnames, the article finds that administrative procedures and cultural perceptions present practical obstacles that still need to be addressed.
Introduction
Within the realm of marriage, women have traditionally been expected to renounce their family names in favour of their husbands’ surnames. This is a clear example of how gender hierarchies have shaped surname traditions. Yet in South Africa, this tradition has been buttressed primarily by administrative policy directives and cultural practice, rather than by specific prohibitory legislation. The contemporary constitutional dispensation has, however, revolutionised personal identity by enshrining the values of equality, dignity, and freedom of choice.
The question of whether a husband may take his wife’s surname is, therefore, not merely administrative — it is constitutionally significant. It goes to the heart of gender equality and the constitutional recognition of individual identity. This article seeks to explore the legal basis upon which a husband is permitted to take his wife’s surname, and to identify the barriers that persist in practice.
1. Legal Framework
1.1 Constitution of the Republic of South Africa, 1996
The Constitution of the Republic of South Africa is the primary legal foundation governing surname choice. Section 9 of the Constitution provides for the right to equality, stating that everyone is equal before the law and prohibiting unfair discrimination on grounds including gender and marital status.1 Section 10 of the Constitution protects the right to human dignity,2 which encompasses personal identity and self-definition. Together, sections 9 and 10 impose a constitutional duty on the State to ensure that the law and practice pertaining to surnames reflect gender-neutral, equality-driven, and dignity-conscious arrangements. Any limitation on surname choice based on gender is, accordingly, unconstitutional. The Constitution not only permits a husband to bear his wife’s surname but actively promotes such a choice as an expression of equality and human dignity in marriage.
1.2 Births and Deaths Registration Act 51 of 1992
This Act regulates the registration and amendment of surnames. Section 26(1)(a) of the Act previously provided that a woman, after concluding a marriage — including a marriage according to the rites of the Islamic or any Indian religion, or a customary union — assumes the surname of the man with whom she concluded such marriage or union, or, after having assumed his surname, resumes a surname which she bore at any prior time.3
The Act therefore enabled a woman to change her surname automatically upon marriage. Critically, however, the Act does not specifically exclude a man from changing his surname to that of his wife. It is constitutionally impermissible to interpret any law as permitting surname changes for women only; such an interpretation would be inconsistent with the equality guarantee in the Constitution.
1.3 Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA)
PEPUDA reinforces the constitutional prohibition against gender-based discrimination, extending that prohibition to discriminatory administrative practices. The Act gives practical effect to the right to equality4 by prohibiting discrimination in both law and practice. Section 6 of PEPUDA provides that no person may unfairly discriminate against any person on one or more prohibited grounds, including gender and marital status.5 Where administrative systems — such as those of the Department of Home Affairs — allow women to change their surnames automatically upon marriage while subjecting men to additional or inconsistent requirements, such practices constitute direct gender discrimination under the Act.
Section 8 of PEPUDA specifically addresses gender discrimination,6 prohibiting practices that reinforce patriarchal stereotypes or undermine equality in marriage and family relationships. The Act’s goal of advancing substantive equality is squarely at odds with any rule or practice that treats the husband’s surname as the default, thereby perpetuating conventional gender norms.
Importantly, PEPUDA is not confined to legislation alone — it applies equally to conduct, policies, and procedures. Any refusal, delay, or inconsistency in processing a husband’s application to change his surname, in the absence of express statutory authority barring such a change, would attract the provisions of the Act and would be justiciable before a court of law. PEPUDA thus reinforces the legal position that husbands and wives must be treated equally in the recognition and registration of their surnames, and provides an additional legal remedy for the enforcement of constitutional rights to equality and dignity.
2. Judicial Interpretation
2.1 The Equality Framework: Harksen v Lane NO
The foundational constitutional equality framework applicable to surname choice was laid down in Harksen v Lane NO 1998 (1) SA 300 (CC).7 Although not a family law case, Harksen established the standard for assessing unfair discrimination under section 9 of the Constitution. The Court held that while not all differentiation is discriminatory, differentiation becomes constitutionally impermissible when it is irrational or results in unfair discrimination.8
The Court developed a three-stage inquiry: differentiation, discrimination, and unfairness. Differentiation occurs when the law distinguishes between individuals or groups; it requires a rational connection to a legitimate government purpose in order to survive scrutiny under section 9(1) of the Constitution. If such differentiation is established, the court then assesses whether it amounts to discrimination, particularly where it is based on a ground listed in section 9(3) of the Constitution. Where discrimination is based on a listed ground, unfairness is presumed, placing the burden on the respondent to justify the differential treatment. In evaluating unfairness, the court considers the societal position of the complainants, the purpose of the discriminatory act, and its impact on the complainant’s dignity and fundamental rights.
The Harksen Court placed particular emphasis on the fact that equality under the Constitution is not merely formal but substantive — the Constitution is concerned with dismantling entrenched patterns of disadvantage and stereotyping, including those embedded in family structures and marriages. Constitutional family law must therefore: (a) reject traditional gender hierarchies; (b) promote equal moral and legal agency among spouses; and (c) protect dignity and autonomy in intimate relationships.
Applied to the issue of husbands taking their wives’ surnames, the Harksen test makes clear that any law or administrative practice that differentiates between spouses in the changing of surnames based solely on gender — allowing only women to do so automatically — constitutes differentiation on a listed ground (gender and marital status) under section 9(3). Unfairness is presumed. The impact of such differentiation on personal identity and human dignity — surnames being central components of both personal and familial identity — cannot be dismissed. Any rule that privileges a husband’s surname over his wife’s surname must be regarded as constitutionally suspect, perpetuating inequality contrary to the Constitution’s transformative aims.
2.2 The Landmark Ruling: Jordaan v Minister of Home Affairs
The most direct judicial authority on the issue is Jordaan v Minister of Home Affairs 2025 (6) SA 323 (CC).9 In this case, the applicants challenged provisions and practices that allowed women, but not men, to change their surnames automatically upon marriage. The Constitutional Court ruled that such a discrepancy constituted unfair gender discrimination that violated the rights to equality and dignity. The Court underlined that one’s surname is a matter of personal identity and that marriage should not constrain individual choices on the basis of gender. More importantly, the Court held that both spouses must enjoy equal freedom to retain, change, or combine surnames — validating a husband’s decision to take on his wife’s surname as a constitutionally legitimate exercise of personal identity.
The decision in Jordaan follows the equality framework established in Harksen and reflects the broader transformative role of constitutional family law in dismantling patriarchal assumptions. The ruling confirms that surname choice in marriage is a personal right, not a gendered obligation.
3. Critical Analysis
Despite the clear constitutional and statutory position, practical limitations persist. The Department of Home Affairs has historically operated within a patriarchal administrative framework, making it procedurally easier for women to change their surnames than for men. This asymmetry in administrative processing has been a consistent obstacle for men seeking to take their wives’ surnames, regardless of the constitutional entitlement to do so.
In comparison, countries such as Canada and certain European Union member states treat surname choice as a purely procedural matter, affording either spouse equal freedom to adopt the other’s surname with minimal formality. South Africa’s legal position is, in principle, equally progressive under the Constitution — the challenge lies in aligning administrative practice with that constitutional standard.
4. Recent Developments
The Jordaan ruling has made the need for the Department of Home Affairs to overhaul its rules and practices regarding gender-neutral surname changes both urgent and constitutionally compelled. The Constitutional Court found that the Department’s previous procedures were unconstitutional on the ground of discrimination: the regulations allowed women to change their surnames upon marriage automatically, while imposing additional procedural burdens on men wishing to do the same, in violation of sections 9 and 10 of the Constitution. The Court accordingly ordered the Minister of Home Affairs to revise the relevant regulations and administrative processes.
While some policies are in the process of being updated, reports of inconsistent implementation at local Home Affairs offices persist. The Constitutional Court, both explicitly and implicitly, recognised that administrative compliance is essential for the fulfilment of equality rights — constitutional provisions must be valid not merely in words but in practice. The Court’s concern about administrative systems perpetuating a patriarchal approach explains why inconsistent enforcement at the local level remains constitutionally significant even after the Jordaan ruling. Such inconsistency undermines the very equality and dignity the judgment was intended to protect.
The broader public debate on gender equality and non-conventional family structures has further intensified demands for clear, comprehensive legislation governing surname rights in marriage. Additionally, by affirming that spouses are equal partners in a marriage, the Court has reinforced the validity of diverse family structures and identity choices — including a husband’s decision to take his wife’s surname — and has added an important dimension to the public conversation on gender equality in family law.
5. Suggestions and the Way Forward
5.1 Legislative Reform
Although the Jordaan ruling declared gender-based differentiation in surname registration unconstitutional, judicial interpretation alone is insufficient to guarantee long-term compliance. The Births and Deaths Registration Act must be specifically amended to eliminate any remaining ambiguity. Section 26 of the Act and the regulations made under it previously allowed for the automatic change of surnames for wives upon marriage. Even where the Constitutional Court has interpreted such provisions as gender-neutral, the absence of explicit statutory language may allow administrators to apply the literal wording of forms and regulations in a manner that perpetuates the unconstitutional distinction. A reformed regulatory framework should: permit either spouse to choose, adopt, hyphenate, or combine surnames upon marriage without requiring discretionary approval; establish a uniform administrative process; eliminate any implication that the husband’s surname is the default; and standardise official forms to include gender-neutral options. This would bring the Act into full alignment with the Constitution and the precedent set in Jordaan.
5.2 Training of Government Officials
The effectiveness of constitutional rights in practice depends significantly on the understanding and conduct of the officials tasked with implementing them. Section 195 of the Constitution sets out the basic values and principles governing public administration, including the promotion of constitutional rights and the principle of accountability. Where government officials lack an understanding of how constitutional equality rights apply to surname choices, discriminatory practices can persist — not out of explicit policy, but out of institutional habit and personal bias. Furthermore, inconsistent application across different offices undermines the constitutional guarantee of equal treatment.
Training programmes for Home Affairs officials should therefore address the constitutional equality framework established in Harksen v Lane NO; the specific obligations arising from the Jordaan ruling; the obligation to respect personal dignity in all interactions involving surname registration; and the practical procedural steps required to process surname changes in a gender-neutral manner. Consistent, constitutionally informed training is an essential component of transformative constitutionalism — the project of translating constitutional values into lived reality.
5.3 Public Awareness
The effectiveness of constitutional rights also depends on public awareness. If citizens are unaware that husbands may legally adopt their wives’ surnames, the right remains underutilised and largely symbolic. Section 7(2) of the Constitution imposes a positive obligation on the State to respect, protect, promote, and fulfil the rights in the Bill of Rights.10 Promotion necessarily includes public education. This obligation is particularly important in the context of surname choice, where social norms continue to assume male surname dominance, where couples may be unaware of their legal options, and where a lack of awareness may discourage men from exercising their rights due to perceived legal or social obstacles.
Public awareness initiatives could include:
- Updating government websites and informational pamphlets to reflect the gender-neutral position confirmed in Jordaan;
- Including surname-choice information in marriage registration materials issued at the point of registration; and
- Public communication campaigns promoting an understanding of marriage as a partnership of equals, with equal rights in relation to surname choice.
Such initiatives would reinforce the constitutional message that marriage is a partnership of equals in both law and practice.
6. Conclusion
The assumption that only women may change their surnames upon marriage is contrary to the spirit of constitutional equality and dignity in South Africa. The Constitutional Court’s decision in Jordaan v Minister of Home Affairs has made it clear that it is legally permissible for a husband to bear his wife’s surname, and that any impediment to this constitutes an act of unfair discrimination. The law is now clear. The challenge that remains is one of implementation: ensuring that the administrative, legislative, and public-awareness frameworks are brought into full alignment with the constitutional standard. The law has unlocked the door; the challenge now lies with ensuring that the door remains open — in practice, for every citizen who chooses to walk through it.
Bibliography
Case Law
Harksen v Lane NO 1998 (1) SA 300 (CC)
Jordaan v Minister of Home Affairs 2025 (6) SA 323 (CC)
Constitution
Constitution of the Republic of South Africa, 1996
Legislation
Births and Deaths Registration Act 51 of 1992
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
Footnotes
1 Section 9 of the Constitution of the Republic of South Africa, 1996.
2 Section 10 of the Constitution of the Republic of South Africa, 1996.
3 Births and Deaths Registration Act 51 of 1992, section 26(1)(a). Note: the original statutory text references section 35 of the Black Administration Act 38 of 1927; that Act has largely been repealed, but the reference remains in the Births and Deaths Registration Act as originally enacted.
4 Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
5 Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, section 6.
6 Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, section 8.
7 Harksen v Lane NO 1998 (1) SA 300 (CC).
8 Harksen v Lane NO para 51.
9 Jordaan v Minister of Home Affairs 2025 (6) SA 323 (CC).
10 Constitution of the Republic of South Africa, 1996, section 7(2).
