South Africa’s top court has ruled that men can take their wives’ surnames, overturning a statute that prohibited them from doing so.
In a victory for the two couples who filed the case, the Constitutional Court declared that the law was a “colonial import” that constituted gender discrimination.
Henry van der Merwe was denied the opportunity to use his wife Jana Jordaan’s surname, while Andreas Nicolas Bornman was unable to hyphenate his surname to add Donnelly, his wife’s surname, according to the national broadcaster SABC.
Parliament must now change the Births and Deaths Registration Act, along with its rules, for the ruling to take effect.
The law was introduced in South Africa during the years of white-minority rule.
Two couples claimed that the law was antiquated and patriarchal and that it violated equality rights established in South Africa’s constitution, which was ratified after apartheid ended in 1994.
They successfully challenged the law in a lower court but requested the Constitutional Court to uphold its decision.
The Constitutional Court noted that “in many African cultures, women retained their birth names after marriage, and children often took their mother’s clan name,” but this changed after the “arrival of the European colonizers and Christian missionaries and the imposition of Western values.”
“The custom that a wife takes the husband’s surname existed in Roman-Dutch law, and in this way was introduced into South African common law.
“This custom also came into existence as a result of legislation that was introduced by countries that colonized African countries south of the Sahara,” the court said.
It went on to say that while South Africa had achieved “significant progress” toward gender equality, several laws and practices that fostered “harmful stereotypes” remained in place.
Neither the Minister of Home Affairs, Leon Schreiber, nor the Minister of Justice and Constitutional Development, Mamoloko Kubayi, contested the two couples’ application, stating that the statute was antiquated.
The Free State Society of Advocates joined the court battle to support the two couples.
It contended that by restricting a man’s right to take his wife’s surname, the legislation fostered damaging stereotypes by denying males an option that women had, according to the Sowetan news site.
