Husband Taking Their Wife’s Surname – Under The Spotlight.

According to the media, two couples challenged this section in the Bloemfontein High Court. Two of the litigants were married in July 2021 at the Home Affairs offices in Bloemfontein. After their marriage was solemnised, and in the process of its registration, the wife was asked by the department official whether she was assuming the husband’s surname or retaining hers. When both applicants informed the official that the husband would, in fact, assume the wife’s surname, he replied that the system did not allow that.

According to IOL, section 26(1) of the Births and Deaths Registration Act 51 of 1992 (the “Act”) was recently found to be discriminatory on the grounds of gender.

Section 26 states that:

“Subject to the provisions of this Act or any other law, no person shall assume or describe himself or herself by or pass under any surname other than that under which he or she has been included in the population register, unless the Director-General has authorized him or her to assume that other surname: Provided that this subsection shall not apply when –

(a) a woman, after her marriage, assumes the surname of the man with whom she concluded such marriage or after having assumed his or her surname, resumes a surname which she bore at any prior time….

 At the request of any person, in the prescribed manner, the Director-General may, if he or she is satisfied that there is a good and sufficient reason as may be prescribed for that person’s assumption of another surname, authorize the person to assume a surname other than his or her surname as included in the population register, and the Director-General shall include the substitutive surname in the population register in the prescribed manner.”

The case stated that by restricting a man’s right to assume the wife’s surname, the law violated the principles of gender equality and perpetuated harmful stereotypes. The judge found that the provisions of the act failed to recognise modern societal values, including gender equality, fluidity in identity choices, and the rejection of rigid gender roles.

Updating the law to reflect these values and promote a more inclusive and equitable society was essential, he said. “In the premises, the limitation does not meet the ‘rational connection’ and ‘proportionality’ tests, rendering the limitation unjustifiable,” the judge said.

While the husbands in these two applications may now take on their wives’ surnames, the constitutionality of the Act will be decided by the Constitutional Court.