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.
On 11 September 2025, in the matter of Jordaan and Others v Minister of Home Affairs and Another (CCT 296/24) [2025] ZACC 19, the Constitutional Court unanimously confirmed the declaration of unconstitutionality. The Court held that Section 26(1)(a) to (c) of the Births and Deaths Registration Act unfairly discriminates on the ground of gender by failing to afford men the same rights as women to assume a spouse’s surname upon marriage, to resume a prior surname, or to add a prior surname to one assumed after marriage.
The declaration of invalidity was suspended for 24 months to allow Parliament to enact remedial legislation. In the interim, the Court granted an order extending the rights under Section 26(1) to all persons, regardless of gender, meaning that husbands may now lawfully assume their wife’s surname upon marriage.
This ruling is a significant step towards gender equality in South African family law. For more information about the different types of marriages in South Africa and how they may affect your rights, or to understand the divorce process should your circumstances change, please do not hesitate to contact Pagel Schulenburg Inc.
Updated/Reviewed 24 March 2026 — Added the Constitutional Court’s confirmation ruling of 11 September 2025 in Jordaan and Others v Minister of Home Affairs (CCT 296/24) [2025] ZACC 19, which unanimously declared Section 26(1)(a)–(c) unconstitutional and granted interim relief allowing all spouses to assume each other’s surnames regardless of gender. Cleaned up formatting artifacts and added internal links.
