Not only will the recent Constitutional Court ruling, making surname choice after marriage gender-neutral, lead to lively conversations between newly engaged couples and their families, but it will also carry significant practical implications for employers, financial institutions, schools, insurers, and any entity that collects or verifies identity data.
A blog posted on the website of Mayet & Associates notes that on 11 September, the Constitutional Court unanimously confirmed that section 26(1)(a) to (c) of the Births and Deaths Registration Act is unconstitutional because it “differentiates irrationally and unfairly on the ground of gender”. In plain terms: South Africa may no longer restrict post-marriage surname options to women. Men, and spouses in any marriage or civil union, may assume each other’s surnames, resume prior surnames, or add prior surnames, subject to an interim order that applies while Parliament updates the law.
The law firm explains that Jordaan and Others v Minister of Home Affairs and Another “affirms equality (section 9) and dignity (section 10), finds no justification under the limitations clause (section 36), and suspends the declaration for 24 months to allow legislative repair, coupled with an immediate, inclusive reading-in to prevent ongoing discrimination”.
Why the old law failed
Section 26(1) allowed only women to:
- take a husband’s surname after marriage;
- resume a prior surname; or
- add a prior surname to a married surname.
Men required Director-General authorisation under section 26(2), and regulation 18(2)(a) confined “good and sufficient reason” largely to a woman’s change in marital status. This gendered framework entrenched patriarchal defaults and excluded male spouses and many same-sex spouses.
Applying the Harksen test, the Court held:
- There is differentiation based on gender.
- It serves no legitimate governmental purpose (surname regulation can be achieved without gendered rules).
- It is unfair discrimination on a listed ground, impairing dignity and autonomy in intimate family-naming choices.
Invalidity of section 26(1)(a) to (c)
As outlined in a blog by Laura Macfarlane and candidate attorney Caroline Cotton on the Norton Rose Fulbright website, the Court confirmed that the impugned sub-sections “irrationally differentiated on the ground of gender and amounted to unfair discrimination, infringing sections 9(1) and 9(3) of the Constitution”.
In practice, the Act had allowed women to adopt their husbands’ surnames automatically after marriage but forced men (and same-sex spouses) to undertake a lengthier, discretionary application to the Director-General. The Court held that this scheme entrenched patriarchal norms and violated dignity.
“Jordaan is more than an administrative tweak; it is a robust affirmation that the Constitution requires active dismantling of subtle patriarchal norms,” write Macfarlane and Cotton.
What the ruling means for individuals
And this is more than words on paper. As Mayet & Associates explains, it has immediate administrative effects. The Department of Home Affairs must now process surname assumptions by any spouse, not just women, under the interim order. Front-office insistence on women-only forms or “DG approval for men” is inconsistent with the judgment. Bring a copy of the order if needed.
The ruling also ensures parity for partners in civil unions and same-sex marriages. Divorced spouses and widows/widowers may resume or add previously borne surnames without gender distinction. However, changing a child’s surname remains governed by section 25(2) of the Act; parents must still follow the statutory application route.
What the ruling means for businesses and institutions
Norton Rose Fulbright notes that the ruling carries wide-ranging implications for employers, financial institutions, schools, insurers, and any organisation that collects or verifies identity data. Clients, employees, or account holders can now present Identity Document or passport applications reflecting a spouse’s surname, regardless of gender. Banks and accountable institutions will need to update their onboarding protocols so that a marriage certificate, together with an ID application receipt, is sufficient without requiring proof of Director-General authorisation.
Employers are also expected to revise name-change policies to allow either spouse to alter surnames after marriage. Benefit administrators must accept such changes as of right, because refusing to do so could expose organisations to claims of unfair discrimination. Similarly, schools, universities, medical schemes, and hospitals should ensure that their databases recognise new surnames for any parent or partner, avoiding reliance on outdated “female-only” rules.
Mayet & Associates advises practitioners and human resources or civil status officers to inform clients that they may now assume a spouse’s surname, resume a prior surname, or combine surnames, citing the interim order.
The supporting documentation should include certified IDs, the marriage certificate or civil union registration, completed Home Affairs forms, and a copy of the Jordaan judgment. Organisations should also update internal standard operating procedures, checklists, and template affidavits to remove gendered restrictions, and ensure that back-office systems, including eHomeAffairs, accept husband-to-wife, wife-to-wife, husband-to-husband, and double-barrel entries without requiring Director-General approval.
Strategic considerations for clients
Macfarlane and Cotton highlight key strategies for organisations:
- Policy review: Conduct an equality audit of all internal procedures touching on surnames, titles, and gender markers. Align documents, forms, and software fields with gender-neutral language.
- Training: Front-line staff must understand that either spouse may now rely on the interim reading-in; refusal to process a legitimate request could amount to unfair discrimination.
- Contractual drafting: Marriage-related clauses in retirement funds, share schemes, and housing allowances should no longer assume a wife will change her name or a husband will not.
- Data migration: Large databases should tag name-change events with effective dates to maintain continuity in credit, medical, and academic histories.
- Litigation exposure: Organisations persisting with gender-skewed rules risk complaints to the Equality Court and reputational fallout.
Suspension for 24 months
To avert a regulatory vacuum, the declaration of invalidity is suspended for two years. During the suspension, section 26(1) is “read in” to apply neutrally: any person may, upon marriage, assume the surname of their spouse, resume a former surname, or combine surnames without Directorate approval.
Parliament has until September 2027 to craft a gender-neutral surname framework.
“Stakeholders should monitor the process and be ready to comment on draft Bills –particularly where systems integration, biometrics and historical data retention are concerned,” say Macfarlane and Cotton.
Pending new legislation, section 26(1) “shall not apply” where:
- After marriage, a person assumes the spouse’s surname, or resumes a surname previously borne.
- A married/divorced person or widow/widower resumes any prior surname.
- A person adds to the post-marriage surname any surname previously borne.
This reading-in uses gender-neutral language aligned with the Civil Union Act, ensuring equal options for all spouses.
Mayet & Associates advises transitional caution: “Until Parliament legislates, rely on the Court’s wording. If an office resists, reference paragraphs of the order (items 2 to 5) confirming the suspension and interim regime.”
If Parliament misses the deadline, the interim regime continues until remedial legislation commences.
