AUTHOR: ADRIENNE OLIVER
PUBLICATION DATE: SEPTEMBER 11, 2025
Since the publication of the Births and Deaths Registration Act 51 of 1992 on 6 May 1992, only wives have been entitled to assume the surname of their husbands. Historically, all attempts made by a husband to assume his wife’s surname, at Home Affairs after their marriage, have proven unsuccessful as the Act had only specifically provided for a wife assuming the name of her husband.
In a recent case heard in the Bloemfontein High Court on 29 August 2024, the Court found Section 26(1)(a) — (c) of the Births and Deaths Registration, to be unconstitutional to the extent that it discriminates on the ground of gender, by failing to:
- Afford a female person the right to have her spouse assume her surname;
- Afford a male person the right to assume the surname of the woman with whom they conclude a marriage or after having assumed her surname, resume a surname which he bore at any prior time;
- Allow for a married or divorced man or a widower to resume a surname which he bore at any time;
- Allow for a man, whether married or divorced or a widower, to add to the surname which he assumed after the marriage, any surname which he bore at any prior time;
- Thereby subjecting any change to the surname of a male person after marriage to the authorization of the Director General in terms of Section 26(2) of the Births and Deaths Registration Act, Act 51 of 1992.
The President and Cabinet, together with Parliament, were afforded 24 months in which to bring into force new legislation or amendments to our existing legislation, designed to afford the right of assumption of another surname as set out in Section 26(1) of the Births and Deaths Registration Act, and pending such change:
- It is declared that the provisions of Subsection 26(1) of the Births and Deaths Registration Act, shall not apply when:
1.1. A person after his or her marriage assumes the surname of the man or wife with whom such person concluded such marriage or after having assumed such surname, resumes a surname which such person bore at any prior time;
1.2 A married or divorced woman or man or a widow or widower resumes a surname which he or she bore at any time; and
1.3 A person, whether married or divorced, or a widow or widower adds to the surname which he or she assumed after the marriage, any surname which he or she bore at any prior time.
Now, on this very day, 11 September 2025, the order of constitutional invalidity issued by the High Court of South Africa, Free State Division, Bloemfontein was confirmed by the South African Constitutional Court on the basis that the Act differentiates irrationally on the ground of gender.
The declaration of invalidity is once again suspended for a period of 24 months to enable Parliament to remedy the defects by either amending existing legislation or passing new legislation within 24 months, to ensure that all persons are afforded the right of assumption of another surname. ‘Persons’ being the prominent word, as the Constitutional Court has ensured that there is no reference being made to gender at all, to promote the inclusion of all identities under our constitutional dispensation. As a result, pending the coming into force of new legislation or amendments to existing legislation, designed to afford the right of assumption of another surname as set out in section 26(1) of the Act,
- It is declared that the provisions of section 26(1) shall not apply when:
1.1. A person after their marriage assumes the surname of the spouse with whom such person concluded a marriage or after having assumed such surname, resumes a surname which they bore at any prior time;
1.2. A married or divorced person or a widow or widower resumes a surname which they bore at any time; and
1.3. A person, whether married or divorced, or a widow or widower, adds to the surname which they assumed after the marriage, any surname which they bore at any prior time.
We have recently seen several changes in our legislation, especially changes which promote gender equality, and these changes are welcome.
If you would like to find out more, contact our offices to schedule a consultation to speak our specialist family law attorneys.