Written by Roy Bregman, an
admitted attorney with over 51 years of experience in family and matrimonial
law. Read Roy's full biography.
For decades, South African law
has upheld a tradition rooted in patriarchal history: upon marriage, a woman
could choose to take her husband's surname, but a man was not afforded the same
right to take his wife's. This long-standing inequality has now been overturned
by a significant judgment from the Constitutional Court. In the case of Jordaan
and Others v Minister of Home Affairs, the court declared a key section of
the Births and Deaths Registration Act unconstitutional, paving the way for
true equality in how couples choose their family name.
This decision marks a pivotal
moment in South African family law, dismantling a legal relic of a bygone era
and affirming the constitutional rights to equality and dignity for all
spouses, regardless of gender.
The Old Law: A Legacy of
Patriarchy
The legal framework governing
surname changes after marriage was contained in section 26(1) of the Births and
Deaths Registration Act 51 of 1992. This section created a clear and unequal
distinction based on gender.
- For Women: The Act explicitly allowed a
woman, after marriage, to assume her husband’s surname, resume a surname
she had before, or add her husband's surname to her own (creating a
double-barrelled name) without needing special permission from the
Director-General of Home Affairs.
- For Men: The Act was silent. A man who
wished to assume his wife's surname could not do so automatically. He
would have to apply to the Director-General for a change of surname, a
process that required a "good and sufficient reason," which,
under the regulations, did not include a change in marital status for a
man.
The court noted that this
practice was a colonial import, rooted in Roman-Dutch law and the English
concept of "coverture," where a woman's legal identity was subsumed
by her husband’s upon marriage. This reinforced the idea of the husband as the
head of the household and the woman as a subordinate, akin to a minor. While
South Africa has since abolished the concept of marital power, this provision
in the Act remained a stubborn remnant of that patriarchal philosophy.
The Jordaan Case:
A Challenge to Tradition
The constitutional challenge was
brought by two couples who faced this legal barrier.
- The Facts:
- Jana Jordaan and Henry van der Merwe married in
2021. They had decided that Mr. van der Merwe would take Ms. Jordaan's
surname to preserve her family name, as her parents were deceased. The
Department of Home Affairs informed them this was not possible.
- Jess Donnelly-Bornman and Andreas Nicolaas Bornman
wished to combine their names into the double-barrelled surname
"Donnelly-Bornman." They were advised that only the female
spouse could amend her surname in this way.
These couples argued that the law
unfairly discriminated against them based on gender, violating their
constitutional rights to equality (section 9) and dignity (section 10).
The Constitutional Court's
Decision:
The Court unanimously agreed with
the applicants and confirmed the High Court's order of constitutional
invalidity. Justice Theron, writing for the court, found that the law was
discriminatory and unjustifiable in an open and democratic society.
The court's reasoning was clear:
- Irrational Differentiation: The law
differentiated between men and women without any legitimate government
purpose. Preventing a man from taking his wife's existing surname does
not serve the goal of regulating the creation of new surnames.
- Unfair Discrimination: The
discrimination was found to be unfair to both men and women. It deprived
men of the choice to define their identity and structure their family as
they see fit. For women, it was more insidious, reinforcing the
patriarchal notion that only a man's name is worthy of being the family
name, thereby giving it a superior status.
- Violation of Dignity: The court
emphasized that the choice of a surname is a matter of defining personal
significance. Prohibiting this choice impairs an individual's dignity and
their ability to achieve personal fulfilment.
The New Rules: What Spouses
Can Do Now
The Constitutional Court declared
section 26(1)(a)-(c) of the Act unconstitutional. However, to avoid a legal
vacuum, the declaration of invalidity has been suspended for 24 months to give
Parliament time to amend the legislation.
During this 24-month period, the
court has put in place an interim remedy. The gendered language of the Act is
temporarily replaced with gender-neutral terms. This means that, with immediate
effect:
- Any person, after marriage, may assume
the surname of their spouse.
- A married or divorced person, or a widower/widow,
may resume any surname they previously bore.
- Any person may add their spouse's surname to their
own.
Should Parliament fail to enact
new legislation within the 24-month period, this interim order will remain in
effect.
Conclusion
The Jordaan judgment
is a significant victory for gender equality in South Africa. It dismantles an
archaic and discriminatory law, aligning the country's legal framework with the
constitutional values of dignity, freedom, and equality. Spouses now have the
freedom to make personal, consequential choices about their family identity
without being constrained by outdated gender stereotypes. This ruling ensures
that in marriage, both partners stand on an equal footing when it comes to one
of the most fundamental aspects of identity: their name.
