The recent landmark ruling by South Africa’s Constitutional Court allows husbands to take their wife’s surname or hyphenate both surnames after marriage. This decision, issued in September 2025, declared sections of the Births and Deaths Registration Act unconstitutional due to gender-based discrimination. Here’s a detailed overview:
1.Background and Legal Challenge
The case was brought by two couples:
Henry van der Merwe was denied the right to take his wife Jana Jordaan’s surname.
Andreas Nicolas Bornman was barred from hyphenating his surname to include his wife Jess Donnelly’s surname (resulting in Donnelly-Bornman) .
The couples argued that the apartheid-era law (enacted in 1992) was archaic, patriarchal and violated equality rights under South Africa’s post-1994 constitution.
The Constitutional Court upheld a 2024 lower court ruling, emphasising that the law perpetuated harmful gender stereotypes.
2. Court’s Reasoning and Historical Context
The court labelled the law a “colonial import” that imposed Western values, noting that in pre-colonial African cultures, women often retained their birth names and children took their mother’s clan name.
Justice Leona Theron stated that the restriction “served no legitimate government purpose” and unfairly discriminated against men by denying them a choice available to women.
The ruling aligns with South Africa’s progressive legal trends, such as being the first African country to legalize same-sex marriage (2006).
3. Implementation and Legislative Changes
Parliament has two years to amend the Births and Deaths Registration Act and its regulations to reflect gender neutrality.
Until formal amendments are made, the court’s ruling serves as an interim measure, allowing men to immediately assume their wife’s surname or choose hyphenated options.
The Department of Home Affairs must update its processes and forms to accommodate these changes, though officials may need time to adjust.
4. Practical Implications for Couples
Options available:
Either spouse can keep their birth surname.
Either spouse can adopt the other’s surname.
Both can opt for a double-barrelled or hyphenated surname.
Children’s surnames: The ruling does not automatically affect children’s surnames. Changing a child’s surname still requires a separate legal process under Section 25 of the Births and Deaths Registration Act.
Marriage laws: The ruling primarily affects marriages under the Marriage Act (1961), which previously restricted men. Note that the Civil Union Act (2006) already allowed gender-neutral surname choices for both same-sex and heterosexual couples.
5. Public Reaction and Cultural Significance
Support: Many praised the decision as a step toward gender equality and individual choice.
Criticism: Some opposed it, viewing it as a threat to traditional values.
Symbolism: The ruling challenges patriarchal norms and acknowledges South Africa’s diverse cultural heritage, where naming practices were not historically tied to Western conventions.
6. Key Considerations for Estate Agents
While not directly related to property transactions, this ruling indirectly impacts estate agents by:
Client documentation: Ensure clients’ surnames align across IDs, property deeds and marital records to avoid disputes.
Sensitivity to diversity: Recognise that modern families may have non-traditional surnames, requiring careful attention to contracts and titles.
Legal awareness: Stay informed about ongoing legislative changes to advise clients accurately.
Conclusion
This ruling marks a significant shift toward gender equality in South African family law, empowering couples to choose surnames that reflect their identities. For estate agents, understanding these changes helps in managing client documentation and promoting inclusive practices. For more details, refer to the full Constitutional Court ruling or the Department of Home Affairs guidelines.