South Africa’s Constitutional Court Breaks Gender Barriers

The Constitutional Court of South Africa has made a landmark ruling allowing husbands to legally adopt their wives' surnames, declaring sections of the Births and Deaths Registration Act unconstitutional due to gender discrimination. This decision overturns previous legal restrictions that prevented husbands from assuming their wives' last names after marriage, affirming equality in surname rights between spouses.

Background of the Case

The ruling stems from legal challenges brought forth by two couples who argued that the law unfairly barred husbands from taking their wives' surnames. One couple married in 2021, the husband was denied the request to change his surname. Another couple, Jess Donnelly-Bornman and Andreas Bornman, faced difficulties when attempting to adopt a hyphenated surname combining both partners' last names. These challenges culminated in a 2024 Free State High Court judgment declaring the relevant sections of the Births and Deaths Registration Act and its regulations discriminatory on gender grounds.

Constitutional Court Ruling Details

On 10 September 2025, the Constitutional Court, sitting in Bloemfontein, declared sections 26(1)(a) to (c) of the Births and Deaths Registration Act, along with Regulation 18(2)(a), invalid. Judge Leona Theron stated the provisions "irrationally" violated the constitutional principle of equality by failing to grant men the right to assume their spouse’s surname. The ruling emphasised that prohibiting husbands from adopting their wives' surnames constituted unfair gender discrimination.

Notably, the court suspended the invalidity declaration for 24 months to allow Parliament time to amend the legislation or draft new provisions addressing the defect. Until such legislative changes occur, the current discriminatory provisions will not apply. This means that men can take their wives’ surnames, resume previously used surnames, add previous surnames to those adopted after marriage, and similar name changes without legal hindrance. If Parliament does not act within two years, the court's ruling will continue to operate as the legal standard.

Impact and Significance

The decision is hailed as a significant step toward gender equality in South African marriage law, removing archaic restrictions on surname choices that reinforced traditional gender roles. It recognises the right of spouses—regardless of gender—to choose their family names freely, fostering equality in marital identity and personal autonomy.

The Minister of Home Affairs was also ordered to pay the legal costs of the applicants, underscoring the court's strong stance against institutionalised gender discrimination embedded in existing legislation.

This ruling aligns South African law with modern views on marriage equality and personal freedom, ensuring legal recognition of men who wish to adopt or combine their wives' surnames without bureaucratic or legal obstacles.