THE Bloemfontein High Court has ruled that two husbands can use the surnames of their wives, after it found that a section of the Births and Registration Act, was discriminatory on the grounds of gender.
The proposed change to the Act is expected to be brought before the Constitutional Court for a verdict on the constitutionality of it.
The ruling comes after two couples challenged the law and the husbands were given permission to use their wives surnames, when the Bloemfontein High Court overturned the provisions of the ‘outdated law’ that prohibited this, last week.
The first couple, who were identified only by their initials (J), said they were told by an official at the Department of Home Affairs, that the husband would not be allowed to assume the wife’s surname as the system did not allow for that.
They retained their different surnames but thereafter launched a high court application to change it. They said the husband had always intended to take the wife’s surname upon marriage. The surname was that of the wife’s biological parents, who passed away when she was four years old, and the surname symbolised her connection to them. They claimed they wanted to honour her parents and raise their children under that surname.
The second couple, Jess Donnelly-Bornman and Andreas Nicolaas Bornman, said Jess was an only child whose maiden surname was important to her.
Before they married, she told her husband that she preferred to keep her maiden surname and would hyphenate his surname with her own. But they both did not want to have different surnames from each other and their children, and preferred to combine their surnames to reflect their family unit.
They said they found out after their marriage that the law did not allow this.
Attorneys for both the couples argued that the act and the regulations perpetuated gender norms set by a ‘patriarchal society that entrenched gender inequality and differentiated based on sex and gender.’
Judge Joseph Mhlambi said the provisions of the Act failed to recognise modern societal values, including gender equality, fluidity in identity choices and the rejection of rigid gender roles.
He said updating the law to reflect these values and promote a more inclusive and equitable society was essential.
“It perpetuates gender inequality and robs individuals of their identity and autonomy. Similarly, by restricting a man's right to assume their wife's surname, the law violates the principles of gender equality and perpetuates harmful stereotypes, as men are denied a choice that is available to women.
“It fails to recognise modern societal values like gender equality and fluidity in identity choices and reinforces the norm that men must conform to traditional masculine norms. It is intrusive and serves no compelling state interest in that it requires government involvement in a profoundly personal decision, violating Individual privacy and autonomy. There is no compelling interest in regulating surname changes, and existing legal processes can be amended to manage these changes without the intervention,” Mhlambi added.
Lawson Naidoo, executive director of the Council for the Advancement of the South African Constitution, said the matter pertained to the equality clause in the Constitution.
“A partner should be able to choose which surnames they wish to adopt after marriage. Clearly, it's been customary for a woman to take husband 's surname. In the context of the Constitution and the rights to equality and human dignity, there should be nothing stopping husbands from taking the surname of their wife,” he added.
Javu Baloyi, spokesperson for the Commission for Gender Equality, said they welcomed the court's ruling and found it a very interesting advancement with a forward looking development.
“This ruling would also dismantle the stereotypes that when a woman is married, only she has to change her surname. After 30 years of democracy, I am proud to say we have come full circle. It is good to note that men had also realised the role of women and would be able to share the surname of his wife.
“This would also dismantle the norms and stereotypes. In the old days, when a woman took the surname of her husband, it was expected and they then thought that they owned the woman, and that would lead to the men objectifying the women. This ruling should be welcomed by all, in the interest of gender equality,” Baloyi said.