Two South African husbands have taken their fight for surname equality to the Constitutional Court, seeking confirmation of a ruling that found sections of the Births and Deaths Registration Act unconstitutional.
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Under the current law, men are prevented from adopting their wives’ surnames after marriage, a restriction that has been challenged as discriminatory and outdated.
On Tuesday, the Constitutional Court heard arguments questioning the constitutionality of Section 26(1)(a) to (c) of the Act, as well as Regulation 18(2)(a). The case follows a landmark ruling by the Free State High Court in Bloemfontein last September, which determined that the provisions in question unfairly discriminate based on gender.
A personal fight for equality
The case stems from two married couples who encountered legal roadblocks when attempting to have the husbands assume their wives’ surnames.
The first couple, whose identities have been withheld, married in 2021. The wife, having lost her biological parents at a young age, held deep emotional ties to her surname and wished to preserve it. Her husband sought to take her name to establish a shared family identity. However, the Department of Home Affairs denied their request, citing existing legal restrictions.
Similarly, Jess Donnelly-Bornman and Andreas Bornman, who wed in 2022, attempted to adopt a hyphenated surname that combined their last names. They were also refused on the basis that current legislation does not accommodate such changes for men in heterosexual marriages.
Government concedes discrimination
According to The Citizen, during the hearing, Advocate Neil Snellenburg, representing the applicants, argued that the law imposes an unjustified restriction on men, allowing women to take their husbands’ surnames without difficulty.
“The respondents, including the Minister of Home Affairs and the Minister of Justice and Constitutional Development, have conceded that Section 26 does not allow a man to take his wife’s surname in a heterosexual marriage,” Snellenburg said. “They have further conceded that this practice is rooted in historical precedent rather than serving any legitimate government purpose. As such, it is discriminatory and constitutionally invalid.”
Calls for legislative reform
Snellenburg also highlighted concerns over how the court should rectify the law, noting that a simple amendment might not be sufficient.
“There remains uncertainty about whether the court should read in amendments to align with the Civil Union Act,” he explained. “If one attempts to do so, it becomes even more ambiguous. The state respondents have not provided a clear proposal on revising the legislation.”
The advocate also stressed that changing the law would require significant policy revisions and financial planning. “This case underscores the complexity of the current system. Any amendment would need to consider broader policy matters and budgetary implications,” he said.
A step towards equality
Snellenburg requested that should the Constitutional Court uphold the High Court’s ruling, the declaration of invalidity be suspended for 24 months. This would allow time for lawmakers to introduce the necessary legislative reforms.
The court has reserved its judgment, leaving the two couples—and others in similar situations—waiting to see whether the law will finally recognise their right to choose their family name on equal terms.
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