ConCourt rules men can assume wives’ surnames and declares legislation unconstitutional

By Johnathan Paoli

The Constitutional Court has struck down provisions of the Births and Deaths Registration Act that prevented men from assuming the surnames of their wives, declaring them unconstitutional for unfairly discriminating on the basis of gender. 

In a unanimous judgment delivered on Thursday, Justice Leona Theron ruled that Section 26(1)(a)–(c) of the Act entrenched patriarchal norms and violated the constitutional right to equality by denying men the same freedoms afforded to women. 

Justice Theron traced the history of surname practices, noting that the expectation for women to take their husbands’ surnames was a “colonial import” rooted in patriarchal norms. 

“This court considers that this practice is largely a colonial import, rooted in patriarchal norms where women were seen as legally inferior to their husbands and expected to assume their identity,” she said. 

The court confirmed an earlier order of invalidity by the Free State High Court and gave