Two husbands have been awarded permission to use their wives’ surnames after a judge overturned an antiquated law that barred it.
A part of the Births and Registration Act that banned a woman’s husband from adopting her surname after marriage was determined to be gender discriminatory.
The two couples went to the Bloemfontein High Court to challenge the outmoded law. The first couple was merely named by their initials, whilst the second couple was listed as Jess Donnelly-Bornman and Andreas Bornman.
The first and second applicants (only known by their initials) married in July 2021 at the Home Affairs headquarters in Bloemfontein.
After their marriage was solemnized and registered, the wife was asked by a department official whether she would take the husband’s surname or keep her own. When both candidates assured the official that the husband would really take the wife’s surname, he responded that the system did not allow it.
After additional inquiry, a second department employee confirmed that the request could not be met. The applicants choose to keep their different surnames. Their daughter wears a surname that was not intended to be their family name.
The petitioners stated that they had always intended for the husband to take the wife’s surname following marriage. This surname was the wife’s first biological parents’ surname and represented her relationship with them. They died when she was four years old.
She stated that she had no intention of altering her surname and had conveyed this to her now-husband at an early point of their relationship. The husband stated that he wanted to take on her surname so that they could become the J[…] family and raise their children under that surname.
In the second couple’s situation, the woman was an only child who treasured her maiden surname. Before their marriage, she told her now-husband that she preferred to preserve her maiden surname and hyphenate his surname with her own.
They didn’t want to have distinct surnames from each other or their children, so they combined their surnames to signify their family unit.
Following marriage, they discovered that, while a provision was established for the female spouse to change her surname, no similar option existed for the male husband. When she signed the marriage certificate, the wife changed her surname to that of their new family (“Donnely-Bornman”). They intended to petition to the Department of Home Affairs to change the husband’s surname as soon as possible.
The wife needed a new identity certificate and passport that reflected her new surname. The husband wished to alter his surname to that of his wife and their family (“Donnely-Bornman”).
Home Affairs officials informed them that the spouse was unable to change his surname since the Births and Deaths Registration Act did not allow for it.
Both couples stated that the Act and rules reinforced patriarchal society-imposed gender norms that entrenched gender inequality and differentiated based on s*x and gender.
Despite the abolition of the marital power and the establishment of a new Constitutional order of equality regardless of s*x, gender, or marital status, the applicants contended that the Act maintained an archaic and patriarchal default position that only women had the right to take a different surname upon marriage.
The court was told that the limitation was unjustifiable since it reinforced gender discrimination and deprived people of their identity and individuality. Similarly, by limiting a man’s right to take his wife’s surname, the law violated gender equality principles and reinforced damaging stereotypes, as males were denied a choice that women had, it was contended.
It was also suggested that the law failed to reflect modern cultural principles such as gender equality and fluidity in identity choices, reinforcing the notion that men must conform to conventional masculine norms.
Judge Joseph Mhlambi concluded that the act’s provisions failed to reflect modern cultural principles like as gender equality, fluidity in identity choices, and the rejection of traditional gender roles.
He emphasized the importance of updating the law to reflect these ideals and promote a more inclusive and equal society. “In the premises, the limitation does not meet the ‘rational connection’ and ‘proportionality’ tests, rendering the limitation unjustifiable,” the tribunal’s ruling stated.
While the husbands in these two applications may now adopt their wives’ surnames, the matter will be heard by the Constitutional Court for a final decision on the Act’s legitimacy.
