The Constitutional Court on Thursday declared parts of the Births and Deaths Registration Act, unconstitutional, allowing husbands to assume their wives’ surnames after marriage.
Justice Leona Theron ruled that the previous legal
restrictions were rooted in colonial-era patriarchal norms and unfairly
discriminated on the basis of gender.
"The inability of husbands to assume their wives’
surnames removes their right to make choices pertaining to their own identity.
The impact on women is also far-reaching. It reinforces patriarchal gender norms
which prescribe how women may express their identity, making this expression
relational to their husband as a governmental and cultural default."
The case was brought by couples who sought to preserve
familial ties and express their identities through shared surnames.
PICTURE: PixabayThe court found that the restriction "negatively
affects both men and women" and that it "entrenches the notion that
the husband is the head of the household," a practice incompatible with
South Africa’s Constitution.
The court confirmed an earlier High Court ruling declaring
the relevant sections of the Act, unconstitutional. It emphasised that the
differentiation could not serve a legitimate government purpose.
"The restriction imposed on assuming another surname
is not removed if the differentiation is remedied. Persons wishing to change
their surnames may only assume an existing surname, namely that of their
spouse. Thus, the differentiation serves no legitimate government
purpose," the judgment read.
The ruling allows couples to legally request surname
changes following marriage, pending amendments by Parliament.
"Pending the coming into force of the new legislation
or amendments, it is declared that the provisions of Section 26.1 shall not
apply when a person after marriage assumes the surname of the spouse with whom
such person concluded a marriage,” Justice Theron explained.
The court also ordered the Department of Home Affairs to
cover the applicants’ legal costs, acknowledging that the litigation was
necessary to vindicate constitutional rights.
Done by: Mitchum George
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