In a landmark decision, the Constitutional Court of South Africa has ruled that the Births and Deaths Registration Act of 1992, which granted women automatic rights to change their surnames after marriage, divorce, or widowhood while requiring men to follow a more cumbersome application process, is unconstitutional. This ruling marks a significant stride towards gender equality in the country’s legal framework and reflects a growing recognition of the need to eliminate outdated gender distinctions.
The specific section in question, Section 26(1)(a) to (c), allowed women to seamlessly adopt their husband’s surname, revert to a former surname after divorce, or hyphenate names when desired. In stark contrast, men were obliged to submit a formal request to the Director-General of Home Affairs for any such changes—an administrative burden that was not imposed on women.
The case was brought to the court’s attention by two couples: Jana Jordaan and Henry Van Der Merwe, alongside Jess Donnelly-Bornman and Andreas Nicolas Bornman. Van Der Merwe sought to adopt his wife’s surname, while Bornman wished to hyphenate his surname with that of his wife. However, both requests were denied under the existing legislation, leading to their appeal in the Free State Division of the High Court, which found in their favour. The Constitutional Court’s ruling now confirms the invalidation of the law, allowing husbands the same rights as their wives in surname changes.
The applicants contended that the provisions of the Act violated the equality clause enshrined in the Constitution and perpetuated harmful stereotypes regarding gender roles within family units. They argued that, while the law might have been intended to simplify processes for women, it instead entrenched outdated assumptions about the roles of men and women. The court found compelling merit in their argument, leading to the historic ruling.
This decision has far-reaching implications not just for couples entering marriage, but also for those navigating divorce or widowhood. The recognition that both men and women should enjoy equal rights in determining their surnames underscores a significant cultural shift towards a more egalitarian society.