South Africa’s Constitutional Court has declared unconstitutional a law that has been in existence for a long time and required that husbands’ wives take their new surnames. The ruling was in response to a lawsuit filed by two couples who felt that the legislation did not give men equal opportunities but rather allowed women more rights. One of the applicants, Henry van der Merwe, was refused permission to adopt the surname of his wife, Jana Jordaan. Another, Andreas Nicolas Bornman, was barred from hyphenating his surname to include that of his wife, Jess Donnelly-Bornman.
In its ruling, the court described the restriction as a “colonial import” that reinforced gender inequality. The court declared that the law did not comply with provisions on equality and dignity in the constitution because it was based on traditional views of marriage and identity. As a consequence of this ruling, Parliament must now make adjustments to the Births and Deaths Registration Act and the regulations that accompany this piece of legislation in line with the Constitution.
The court identified the historical origins of the Rule as being from the colonial past of the country of South Africa, stating that the ‘obligation on women to adopt their husbands’ surnames derives from Roman-Dutch law.’ It noted that prior to the advent of Western law affecting the country through the time of colonial subjugation, women in African societies had the practice of being allowed to retain their surnames after marriage, with their children often taking the surname of their mothers’ clans.
Although the court recognizes the progress made in South Africa since the end of apartheid in 1994, they also pointed out that some laws and social norms continue to perpetuate damaging stereotypes. True gender equality cannot be attained without eliminating these vestiges from legislation, they added.
In particular, there were no challenges coming from the government in this case. Both the Minister of Home Affairs, Leon Schreiber, and the Minister of Justice and Constitutional Development, Mamologo Kubayi, agreed that the law in question had become outdated. “The Free State Society of Advocates also supported the couple, arguing that to deny men the chance to adopt their wives’ surnames is to perpetuate inequalities, as they fail to offer their wives the choice that the wives already have.”
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The court’s decision has been generally hailed as a move in the direction of a more inclusive concept of marriage and of personal identity, as well as a reminder of the need for reciprocity in the concept of equality before the law.
