It is common knowledge that a woman can take on her husband’s surname after marriage, however, have you ever wondered whether a husband can assume his wife’s surname?
Prior to September 2024, the Births and Deaths Registration Act, Act 51 of 1992, particularly Section 26(1)(a) to (c) thereof, provided that the changing of a surname was dependent on the marital status of a woman. No provision existed for a male to enjoy the same rights as those provided to women in the Act. 

In the event that a husband wished to take over his wife’s surname, he would be required to request the consent of the Director-General to do so, which request must be supported with suitable and sufficient reasons therefor.

In August 2024, the Bloemfontein High Court heard a joint application by J and J, as well as DB and B, wherein the Court was requested to declare Section 26(1)(a) to (c) of the Births and Deaths Registration Act unconstitutional, on the basis that it discriminates on the grounds of gender. 

It was argued, inter alia, that the limitation of Section 26(1)(a) to (c) of the Births and Deaths Registration Act was not justifiable as it perpetuates gender inequality and disallows individuals of their identity; fails to recognise a modern society which values gender equality, and further that it serves no interest on the state to disallow such change. 

The Court ultimately found Section 26(1)(a) to (c) of the Births and Deaths Registration Act to be unconstitutional on the basis that it discriminates on the grounds of gender. The matter has since been referred to the Constitutional Court for confirmation of the constitutional validity of the provision.