The Constitutional Court has ruled that a section of South Africa’s Births and Deaths Registration Act, which gave women but not men automatic rights to change their surnames after marriage, divorce or widowhood, is unconstitutional.
According to Section 26(1)(a) to (c) of the 1992 Act, women could take their husband’s surname after marriage, revert to a previous surname after divorce or widowhood, or add a previously used surname to their married name.
Men, however, were required to follow the general rule of applying to the Director-General of Home Affairs for any change, a process not required of women under the section.
The Constitutional Court found that this amounted to unfair gender discrimination because it failed to provide men with the same automatic, simplified process.
Husbands can now legally assume wives’ surnames
The matter was brought before the court by the couples Jana Jordaan and Henry Van Der Merwe, and Jess Donnelly-Bornman and Andreas Nicolas Bornman.
Van Der Merwe was denied the ability to take his wife Jordaan’s surname, while Bornman was refused permission to hyphenate his surname with his wife Donnelly’s.
The couples had already challenged the provision successfully in the Free State Division of the High Court. However, under constitutional law, the invalidity needed confirmation by the Constitutional Court before it could take effect.
The applicants argued that the law violated the equality clause in the Constitution by creating unnecessary gender distinctions. They further submitted that while the provision may have been intended to ease administrative processes for women, it “now serves to entrench stereotypical assumptions about the roles of men and women within a family structure.”
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— Constitutional Court (@ConCourtSA) September 11, 2025
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