What the court said
From tradition to equality. Surname choice now belongs to all spouses.
In many cultures, when couples marry, it is expected that the woman adopts her husband's surname, a practice that has deep historical roots and that is often based on patriarchal norms that dictate gender roles and expectations in society.
In September 2025, the Constitutional Court delivered a unanimous judgment regarding surname changes in Jordaan and Others v Minister of Home Affairs and Another (CCT 296/24) [2025] ZACC 19, striking down parts of the Births and Deaths Registration Act 51 of 1992 (“Act”) and declaring them unconstitutional on the grounds of unfair discrimination based on gender. This judgment is a significant step towards transforming gender norms in South Africa and advancing equality and dignity for all.
Facts of the case
Two couples challenged section 26(1)(a)-(c) of the Act and regulation 18(2)(a) under the Act that allowed women to assume their husband's surname after marriage, but denied men the same right. The couples sought the freedom for the husbands to take their wives' surnames or create double-barrelled surnames. The Department of Home Affairs refused to allow the husbands to change their surnames due to the limitations in the Act. The High Court declared these provisions of the Act to be unconstitutional and the matter was brought before the Constitutional Court for confirmation.
The core question was whether the provisions in the Act unfairly discriminate against men based on gender and infringe on their human rights of being treated equally before the law and to receive equal treatment and benefit of the law (section 9 of the Constitution), as well as whether it infringes on their right to dignity (section 10 of the Constitution). The Constitutional Court also considered whether such discrimination is justifiable under section 36 of the Constitution, which refers to the limitation of rights under certain circumstances.
In determining whether unfair discrimination is present, the Constitutional Court considered the following questions:
> Does the law or provision differentiate between people or categories of people?
- It was found that the Act allowed only women to change surnames freely after marriage, which excludes men and same-sex spouses. Therefore, a clear differentiation exists based on gender.
> Does the differentiation serve a legitimate government purpose?
- The Constitutional Court noted the purpose of regulating surname changes to ensure that new surnames are not created that bear no connection to the family, as well as the Legislature's objective of maintaining administrative order.
- However, the Constitutional Court found that allowing men to take their wives' surnames does not disrupt the purpose and objectives of the government. They would still be taking an existing surname linked to the family. Thus, the differentiation serves no legitimate governmental purpose.
> Is the discrimination unfair?
- The Constitutional Court held that the discrimination caused by the provisions of the Act negatively impacts both men and women.
- For men, it prevents them from defining their family identity and deprives them of the choice to take their wives' surnames if they wish.
- For women, it subjects them to patriarchal assumptions that only the husband's surname is valid and worthy as a family name. It further reinforces the idea that a man's identity is fixed, while a woman's is changeable.
- The Constitutional Court emphasised that choosing a surname is a matter of profound significance, and preventing spouses from making that choice freely infringes their dignity.
- The Constitutional Court held that the discrimination does not achieve a worthy or important societal objective. Therefore, the limitation of equality and dignity cannot be justified in an open and democratic society.
In light of the above, the Constitutional Court declared the provisions under the Act to be invalid and unconstitutional. Although the invalidity is suspended for 24 months to allow Parliament to amend the law, the Constitutional Court made an order for interim remedies to allow all spouses, regardless of gender, to assume each other's surname.
Impact of this judgment
This judgment is more than a technical legal victory; it is a cultural shift. For decades, the default assumption was that women take their husband's surname, symbolising male dominance in family identity. But now, this judgment dismantles gender stereotypes and brings about equality in the daily lives of ordinary South Africans. This judgment ensures that couples have equal rights to decide whose surname to use or create a double-barrelled surname without gender restrictions. Moreover, this judgment opens the doors to be inclusive for all, as same-sex couples and those in civil unions benefit equally, aligning the law with modern family structures.
This change signals that equality and human dignity are not merely abstract concepts but tangible rights. For ordinary South Africans, the law now truly reflects their lived realities and constitutional values, affirming that equality encompasses identity, family and freedom of choice, far beyond just legal statutes.
Did you know…Men can now legally take their wives' surnames when they get married.