South Africa’s Constitutional Court has delivered a landmark ruling allowing husbands to legally adopt the surnames of their wives, striking down a law that previously barred men from doing so.
The court declared the legislation — part of the Births and Deaths Registration Act — a “colonial import” that reinforced gender-based discrimination.
Case Background
The case was brought forward by two couples:
- Henry van der Merwe, who was denied the right to take the surname of his wife, Jana Jordaan.
- Andreas Nicolas Bornman, who wanted to hyphenate his surname with that of his wife, Jess Donnelly, to become Donnelly-Bornman.
Both couples argued that the law was archaic, patriarchal, and in direct violation of the equality rights enshrined in South Africa’s 1994 constitution.
Court’s Observations
In its judgment, the Constitutional Court highlighted that in many African cultures, women traditionally retained their birth names after marriage, with children often taking their mother’s clan name. This practice, the court said, shifted after European colonisers and missionaries imposed Western norms, including the idea that wives must adopt their husband’s surname.
The court also noted that the Roman-Dutch legal system reinforced this practice, embedding it into South African law during the colonial era.
Significance of the Ruling
The ruling marks a major victory for gender equality. Parliament will now be required to amend the Births and Deaths Registration Act and its regulations to align with the judgment.
Importantly, the Ministers of Home Affairs and Justice did not oppose the application, agreeing that the law was outdated.
The Free State Society of Advocates, which joined the case in support of the couples, argued that the law perpetuated harmful stereotypes by restricting men’s choices, while granting women greater flexibility.
Broader Impact
The decision is seen as a step forward in dismantling legal remnants of colonial and patriarchal systems, ensuring that marital surname choices are equal for both men and women in South Africa.
Source: My News Ghana
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