By Nkosana Khumalo
The Bloemfontein High Court recently ruled that South African men now have the right to adopt their wives’ surnames after marriage, overturning long-held norms rooted in gender bias. This decision emerged from the case J.J and Others v Minister of Home Affairs and Another, where two couples challenged provisions in the Births and Deaths Registration Act that restricted surname choices for married couples.
Historically, the Act allowed only women to adopt their husband’s surname, enforcing a one-sided approach that perpetuated outdated gender norms. The applicants argued that the law’s rigidity violated constitutional rights to gender equality and self-identity, as it imposed a default patriarchal structure on marital identity. Judge Joseph Mhlambi acknowledged this, stating that the law’s limitations did not satisfy “rational connection” or “proportionality” tests, thus failing modern gender equality standards.
This landmark ruling allows husbands in the two cases—and potentially many others—to legally adopt their wives’ surnames. The first couple sought to honour the wife’s heritage, symbolised by her surname, while the second couple wished to hyphenate their names to reflect a family identity. This ruling not only grants them this right but also reflects broader societal shifts towards inclusive and fluid identity choices within marriage.
However, the decision may still face further scrutiny, as the Constitutional Court is set to review the case to confirm the Act’s constitutionality. This ongoing legal process promises to shape South Africa’s approach to marital surname conventions and gender equality for years to come, signalling a move away from restrictive traditional practices and towards greater individual autonomy within marriage.
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