Have you ever considered taking on your wife’s surname? In the progressive inclusive society that we live in, would you believe it if you hear that before 29 August 2024 a husband was not allowed to take on his wife’s surname or even have a double-barrelled surname of both him and his wife’s surnames?
One would take it as a given that a husband and wife can change their surnames. However, in the recent case of Jordaan & 3 Others v The Minister of Home Affairs and 1 Other (“Jordaan”) the high court dealt with the above issue. In short, the court acknowledged that before this case it was not possible for a husband to take his wife’s surname. The court declared this position unconstitutional to the effect that it discriminates against male persons by failing to provide for the change in the marital status of a man.
Factual background of Jordaan–case
In the Jordaan case, there are two couples that decided to approach the court on this issue of a husband taking on a wife’s surname.
The first and second applicants were married, and the husband wanted to take on his wife’s surname, viz. Jordaan. The husband agreed to become a Jordaan as the surname symbolised the wife’s connection to her late parents. The Department of Home Affairs refused to change the husband’s surname to Jordaan as the “system did not allow that.” As a result, both parties retained their own surname, and their child now carries a surname they did not intend to be their family name.
The third and fourth applicants wished for their surnames to be combined so that it can reflect their familial unit. The Department of Home Affairs informed the parties’ that only the wife can change her surname to become double barrelled and not the husband.
From the background of the case, it is clear that the Department of Home Affairs’ view is that a wife can change her surname to her husband’s surname or combine her and her husband’s surname to effectively have a double-barrelled surname. A husband can, however, only retain his own surname.
Legislative context
It is imperative that we determine what the Births and Deaths Registration Act 51 of 1992 (“the Act”) says about the changing of a surname to get a better understanding of the Jordaan case and the Department of Home Affairs’ stance.
Section 26(1) of the Act deals with the “assumption of another surname” and provides for the following:
- “Subject to the provisions of this Act or any other law, no person shall assume or describe himself or herself by or pass under any surname other than that under which he or she has been included in the population register, unless the Director-General has authorized him or her to assume that other surname: Provided that this subsection shall not apply when-
- a woman after her marriage assumes the surname of the man with whom she concluded such marriage or after having assumed his surname, resumes a surname which she bore at any prior time;
- a married or divorced woman or a widow resumes a surname which she bore at any prior time; and
- a woman, whether married or divorced, or a widow adds to the surname which she assumed after the marriage, any surname which she bore at any prior time.”
- 2.At the request of any person, in the prescribed manner, the Director-General may, if he or she is satisfied that there is a good and sufficient reason as may be prescribed for that person’s assumption of another surname, authorize the person to assume a surname other than his or her surname as included in the population register, and the Director-General shall include the substitutive surname in the population register in the prescribed manner.
[Italics added]
Regulation 18 of the Regulations on the Act also regulates the assumption of another surname and sets out a closed list for the reasons that can be advanced for a change of surname in terms of section 26(2) of the Act. Regulation 18(2)(a) specifically provides that the reason must relate to “a change in the marital status of a woman.”
What can be understood from the above is that any person who does not fall within the ambit of section 26(1) of the Act, must in terms of section 26(2) apply to the Director-General for consent to assume a different surname. The reasons advanced for such a change must be in terms of regulation 18 and as stated, this only includes a change of a woman’s surname.
The Act and the Regulations thereto clearly supports the position of the Department of Home Affairs, in other words, only a woman can change her surname.
Jordaan-case
In the case of Jordaan, the applicants approached the high court to declare section 26(1)(a) – (c) of the Act unconstitutional on the basis that it discriminates on the ground of gender as it fails to afford a female spouse the right to have her spouse assume her surname and it also fails to afford a male person the right to assume the surname of the woman they married.
The applicants also contended that regulation 18(2)(a) of the Regulations on the Act is unconstitutional as it does not provide for the change in the marital status of a man.
The argument put forward by the applicants for the unconstitutionality of the above, with which the Honourable Justice Mhlambi agreed with, are that it contravenes section 9 of the Constitution of the Republic of South Africa, 1996 (“Constitution”), viz. the right to equality. Section 9(3) of the Constitution specifically prohibits unfair discrimination on the grounds of gender and marital status.
Section 36 of the Constitution allows for the limitation of a right if it is reasonable and justifiable. In this case, the limitation on the right to equality is neither reasonable, nor justifiable for the reasons set out by the amicus curiae. These grounds include:
- The Act and the Regulations entrenches gender inequality and preserves the archaic idea of a patriarchal society;
- It perpetuates harmful stereotypes and reinforces the norm of traditional masculinity;
- It fails to recognise modern societal values like gender equality and fluidity in identity choices; and
- There is no compelling state interest that requires state involvement in such a personal decision as to which surname a person would prefer to adopt.
In essence, men are denied the choice that women have available to them. This clearly infringes on the right to equality and there is no rational reason advanced for this infringement.
For the above reasons, the high court found in favour of the applicants and declared section 26(1)(a) – (c) of the Act and regulation 18(2)(a) unconstitutional. It was ordered that the declaration of invalidity of the Act and Regulations are suspended for 24 months for the remedying of the existing legislation or passing of new legislation. The Department of Home Affairs was also ordered to change the surnames of the applicants as requested.
Way forward
From a legal perspective, significant progress continues to be made in the pursuit of gender equality. The transition from a patriarchal society to one that embraces equality is gradually taking root in our contemporary norms and values.
As of 29 August 2024, pending legislative changes, a husband is now given the option to adopt the wife’s surname or to combine their surnames. It is highly improbable that the high court’s decision in Jordaan will be overturned by the constitutional court, as there is no rational justification for a provision that prevents a husband from adopting his wife’s surname.
This case marks a significant step forward in dismantling entrenched archaic societal norms and advancing the cause of gender equality. What we, as a progressive society, take as a given, first required a person to challenge the outdated norms and principles. It is therefore evident that cases like this serve not only as a legal precedent but also as a catalyst for broader societal change, encouraging a re-evaluation of traditional roles and fostering an environment where both partners can share equally in identity and heritage. As we move forward, it is imperative that we continue to challenge outdated perceptions and pave the way for a more equitable future for all.
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