Landmark Victory for Equality: South Africa's Constitutional Court Grants Men the Right to Choose a Spouse's Surname

By FJ Snijman - He writes about divorce, electronics, passive income, ZX14R, local SEO and small businesses — October 17, 2025

In a significant advancement for gender equality, South Africa's highest court ruled on September 11, 2025, that husbands can now legally take the surname of their wives. This landmark decision by the Constitutional Court overturns a long-standing law that previously restricted this right exclusively to women.

The ruling immediately impacts two couples who championed the case, challenging a discriminatory practice rooted in colonial history.

The Challenge to Discriminatory Law

The law, which restricted a man’s right to assume his wife’s surname, was successfully challenged by two couples who argued it was archaic and patriarchal. They asserted that the legislation violated the fundamental equality rights enshrined in South Africa’s constitution, adopted following the end of apartheid in 1994.

The law was declared a "colonial import" and was found to amount to gender-based discrimination. The Constitutional Court noted that while South Africa has made "significant advancement" in gender equality, some laws and practices that perpetuate "harmful stereotypes" still persist.

Key Plaintiffs in the Surname Case

The case was brought forward by two distinct examples of discrimination under the old law:

• Henry van der Merwe was previously denied the right to adopt the surname of his wife, Jana Jordaan.
• Andreas Nicolas Bornman was denied the ability to hyphenate his surname to incorporate that of his wife, Jess Donnelly-Bornman.

These couples successfully challenged the law in a lower court before asking the Constitutional Court to confirm its critical ruling.

Deep Roots: Unpacking the Colonial Origins of the Law

The Constitutional Court provided important historical context for the now-overturned legislation, tracing its origins to European influence.

The law was introduced in South Africa during the years of white-minority rule. The court specifically detailed how the custom that mandates a wife takes her husband's surname originated in Roman-Dutch law and was subsequently introduced into South African common law. Furthermore, this custom resulted from legislation implemented by countries that colonized African nations south of the Sahara.

"The Constitutional Court noted that 'in many African cultures, women retained their birth names after marriage, and children often took their mother's clan name' but this changed after the 'arrival of the European colonisers and Christian missionaries, and the imposition of Western values'".

Support for Gender-Neutral Surname Rights

The application filed by the two couples received broad support, indicating a consensus that the law was outdated.

• Neither the Minister of Home Affairs, Leon Schreiber, nor the Minister of Justice and Constitutional Development, Mamoloko Kubayi, opposed the application. Both ministers agreed that the law was obsolete.
• A legal body, the Free State Society of Advocates, actively joined the court case in support of the couples. This body argued that restricting a man's right to assume his wife's surname perpetuated harmful stereotypes because it denied men a choice readily available to women.

Next Steps: Amending the Births and Deaths Registration Act

While the ruling is effective immediately, there are necessary legislative steps required for its full implementation.

Parliament is now mandated to amend the Births and Deaths Registration Act, along with its related regulations, to formalize the change and ensure the ruling can be fully executed. This judicial victory marks a key moment, signifying South Africa's continuing commitment to breaking down historical gender barriers and advancing equality.