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Monday, August 3, 2026

WATCH: ConCourt rules men may assume their wives’ surname

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The Constitutional Court has given Parliament 24 months to review the Births and Deaths Registration Act, following a landmark ruling that allows husbands to legally take their wives’ surnames.

 

The judgment is seen as a major step towards gender equality and freedom of choice in South Africa.

 

Concourt Judge Leona Theron explains why the court struck down parts of the Act as unconstitutional:

 

“This court considers that this practice is largely a colonial import, rooted in patriarchal norms, where women were seen as legally inferior to their husbands and expected to assume their identity.”

 

WATCH the full judgment below:

 

 

Summary of the Judgment

 

The case challenged section 26(1)(a)-(c) of the Births and Deaths Registration Act (1992), which only allowed women to change their surnames after marriage (e.g., to assume, resume, or add a surname).

 

Men were excluded from these provisions, meaning husbands could not assume their wives’ surnames.

 

Court’s Findings

 

The Court, in a unanimous judgment by Theron J, held that the provisions:

 

  • Unfairly discriminate on the basis of gender, violating section 9(1) and 9(3) of the Constitution (equality).
  • Undermine dignity by restricting personal and family identity choices (section 10).
  • Perpetuate patriarchal and colonial norms that place men’s surnames above women’s.
  • The state conceded that the law was outdated, patriarchal, and unconstitutional.

 

Order

 

  • The Court confirmed the High Court’s declaration of invalidity.
  • Section 26(1)(a)-(c) is declared unconstitutional to the extent that it excludes men from assuming or resuming surnames in the same way women can.
  • The invalidity is suspended for 24 months to allow Parliament to amend or replace the legislation.
  • In the interim, a reading-in remedy applies:

 

  1. Men (married, divorced, or widowed) have the same rights as women to assume, resume, or add surnames after marriage.
  2. The provisions must be applied in gender-neutral terms.
  3. If Parliament fails to act within 24 months, the interim remedy remains in force.
  4. The Minister of Home Affairs must pay the applicants’ legal costs.

 

READ THE FULL JUDGMENT HERE.

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