On 11 September 2025, the Constitutional Court, in a unanimous judgment, declared certain provisions of the Births and Deaths Registration Act 51 of 1992 and related regulations unconstitutional, opening the door for husbands to assume their wives’ surnames after marriage.
The case dealt with the constitutionality of section 26(1)(a)–(c) of the Act, which regulates the amendment of forenames and surnames in South Africa. Under these provisions, a woman could assume her husband’s surname after marriage, but the law did not provide an equivalent right for men to assume their wives’ surnames.
The matter arose when two husbands sought to take their wives’ surnames but were refused by the Department of Home Affairs. They approached the High Court, arguing that the Act and its regulations unfairly discriminated on the basis of gender, in violation of section 9 of the Constitution, which guarantees equality. The Free State High Court agreed and declared the provisions unconstitutional, and because the matter involved constitutional invalidity, it was referred to the Constitutional Court for confirmation.
The Constitutional Court confirmed the ruling, declaring sections 26(1)(a)–(c) of the Act and Regulation 18(2)(a) unconstitutional. The Court held that the provisions entrenched outdated patriarchal norms by granting surname rights only to women, thereby discriminating against men and infringing the constitutional guarantee of equality.
The Court suspended the declaration of invalidity for 24 months to give Parliament time to amend the legislation. As an interim measure, it ordered a reading-in remedy using the inclusive language of the Civil Union Act, ensuring that spouses, regardless of gender, may assume each other’s surnames.
