Two husbands have been given the green light to use the surnames of their wives after a court overturned the provisions of an outdated law which prohibited this.
A section of the Births and Registration Act, which prohibited a woman from having her husband taking on her surname upon marriage, was found to be discriminatory on the ground of gender.
The two couples turned to the Bloemfontein High Court where they challenged this outdated law. The first couple was only identified by their initials, while the second couple was cited as Jess Donnelly-Bornman and Andreas Bornman.
The first and second applicants (only identified by their initials) were married in July 2021 at the Home Affairs offices in Bloemfontein.
After their marriage was solemnised, and in the process of its registration, the wife was asked by the department official whether she was assuming the husband’s surname or retaining hers. When both applicants informed the official that the husband would in fact assume the wife’s surname, he replied that the system did not allow that.
On further inquiry, a second staff member in the department confirmed that the request could not be accommodated. The applicants elected to retain their different surnames. Their daughter carries a surname they did not intend to be their family name.
The applicants said they had always intended that the husband would assume the wife’s surname upon marriage. This surname was the wife’s first biological parents' surname and symbolised her connection to them. They passed away when she was four years old.
She said she had no intention of changing her surname, and had explained this to her now husband at a very early stage of their relationship. The husband said he wanted to take-on her surname so that they could become the J[...] family and raise their children with that surname.
The second couple’s case was that the wife was an only child whose maiden surname was important to her. Before their marriage, she had told her now husband that she preferred to keep her maiden surname and would rather hyphenate his surname with her own.
They both did not want to have different surnames from each other and their children, and preferred to combine their surnames to reflect their familial unit.
After marriage, they realised that though a provision was made for the female spouse to change her surname, no such provision existed for the male spouse. The wife changed her surname to that of their new family unit (“Donnely-Bornman”) when she completed the marriage certificate. They intended to apply to the Department of Home Affairs to amend the husband’s surname as soon as they could.
The wife wanted a new identity document and passport which would reflect her new surname. The husband wanted to change his surname to that of the wife and their familial unit, (“Donnely-Bornman”).
Home Affairs officials told them that it was not possible for the husband to change his surname as the Births and Deaths Registration Act did not provide for this.
It was argued on behalf of both couples that the Act and the regulations perpetuated gender norms set by a patriarchal society, that entrenched gender inequality and differentiated based on sex and gender.
Despite the abolition of the marital power and the advent of the new Constitutional order of equality regardless of sex, gender or marital status, the applicants argued that the Act had retained an archaic and patriarchal default position that only women were entitled, as of right, to assume a different surname upon marriage.
The court was told that the limitation was not justifiable as it perpetuated gender inequality and robbed individuals of their identity and autonomy. Similarly, by restricting a man's right to assume the wife's surname, the law violated the principles of gender equality and perpetuated harmful stereotypes, as men were denied a choice that was available to women, it was argued.
It was further argued that the law failed to recognise modern societal values like gender equality and fluidity in identity choices, and reinforced the norm that men must conform to traditional masculine norms.
Judge Joseph Mhlambi found that the provisions of the act failed to recognise modern societal values, including gender equality, fluidity in identity choices, and the rejection of rigid gender roles.
Updating the law to reflect these values and promote a more inclusive and equitable society was essential, he said. “In the premises, the limitation does not meet the 'rational connection' and 'proportionality' tests, rendering the limitation unjustifiable,” the judge said.
While the husbands in these two applications may now take-on the surnames of their wives, the matter will go before the Constitutional Court for the final word on the constitutionality of the Act.
Pretoria News