In a historic decision on Thursday, the Constitutional Court declared sections of the Births and Deaths Registration Act unconstitutional, opening the way for men in South Africa to assume their wives’ surnames after marriage. The ruling, which confirms a lower court’s finding, is being hailed as a watershed moment for gender equality in the country’s legal system.
Justice Leona Theron, delivering the unanimous judgment, struck down Section 26(1)(a)–(c) of the Births and Deaths Registration Act 51 of 1992, which had previously restricted the right to assume a spouse’s surname to women only.
“Section 26(1)(a) to (c) of the Births and Deaths Registration Act is declared unconstitutional to the extent that, in violation of Section 9(1) of the Constitution, it discriminates irrationally on the ground of gender,” Theron said. “It unfairly discriminates by failing to afford a woman the right to have her spouse assume her surname, and failing to afford a man the right to assume the surname of his wife after marriage.”
The court confirmed that men, like women, may also resume or add previous surnames after divorce or remarriage—rights previously denied to them under the law.
How the case began
The matter originated in the Free State High Court, where two married couples challenged the provisions of the Act in 2023. The couples argued that preventing men from adopting their wives’ surnames was discriminatory, unconstitutional, and entrenched outdated patriarchal norms.
The High Court agreed and declared the relevant provisions invalid in 2024, but suspended the order pending confirmation by the Constitutional Court. Thursday’s ruling now gives that judgment legal effect.
Parliament has been given 24 months to amend the Act, but in the interim, the sections in question are struck down, meaning men may immediately assume their wives’ surnames if they wish.
The law before today
Under the old framework, South African women had the option of taking their husband’s surname, keeping their maiden name, or using a double-barrelled version of both. Men, however, were legally excluded from taking their wives’ surnames.
Critics had long argued that this amounted to entrenched gender discrimination, inconsistent with the Equality Clause in Section 9 of the Constitution.
Advocate Brenda Madumise, Director at Wise4Africa, welcomed the ruling, saying it was “long overdue.”
“If we are true to ourselves as a constitutional democracy, then we must believe in the right to equality. The ConCourt is correct to say there is no benefit to the state in restricting surname choices. What does the state lose if I take my husband’s surname or if he takes mine? It doesn’t change the price of bread,” Madumise said.
“This should have happened years ago,” she added.
Reaction on social media
The ruling quickly became a talking point on social media platform X (formerly Twitter), with South Africans sharply divided on the implications.
User Vusi Africa posted: “Well it’s official—a man can take his wife’s surname if it pleases him. The ConCourt has just made a historic ruling.”
Another user, Bongani MKJ, expressed skepticism: “Justice Theron has handed down a judgment allowing husbands to take their wives’ surnames. Surely ‘Abo-my-friend’ are celebrating. Let’s be honest, no self-respecting South African man will go down this road.”
User P_Ndzitoyi raised cultural concerns: “ConCourt ruling: husbands can now legally take their wives’ surnames. But what happens in cases like mine? Mr and Mrs Ndzotoyi, our kids take my surname and his clan name? This doesn’t make sense in my culture. I need to be schooled.”
Broader implications
Legal experts say the ruling may have ripple effects beyond family law. Some cultural and religious groups are expected to challenge or resist the practical application of the decision, arguing that it conflicts with traditional norms of lineage and clan identity.
But equality advocates insist the judgment is about choice, not compulsion. “No one is being forced to change their surname,” explained legal analyst. “What the Court has done is to ensure that both men and women enjoy equal recognition under the law. It is an important corrective against patriarchal bias.”
The judgment also aligns South Africa with several other democracies, including Canada, Spain, and parts of the United States, where surname choices after marriage are not restricted by gender.
A symbolic victory
Beyond its practical impact, the ruling carries powerful symbolic weight in a society still grappling with gender inequality. According to Stats SA, women continue to face systemic discrimination across employment, education, and cultural practices. Allowing men the same rights as women in something as personal as surname choices, activists argue, helps dismantle entrenched stereotypes.
Justice Theron, in her judgment, underscored this symbolic importance: “The law should not reinforce outdated notions of gender roles. It must reflect the constitutional promise of equality for all.”
For many South Africans, the ruling is a reminder that the Constitutional Court remains a critical guardian of democratic rights. For others, it is a moment that will test the balance between constitutional principles and cultural traditions.
As Parliament begins the process of amending the Act, the national debate is likely to intensify. But for now, South African men have a new legal right—to take their wives’ surnames if they so choose.
