Can a Husband Take His Wife’s Surname?

The Constitutional Court Opens the Door for Husbands to Take Their Wives’ Surnames

Section 26(1) of the Births and Deaths Registration Act (“Act”)¹ states the following:

“(1) Subject to the provisions of this Act or any other law, no person shall assume or describe himself or herself by or pass under any surname other than that under which he or she has been included in the population register, unless the Director-General has authorised him or her to assume that other surname: Provided that this subsection shall not apply when—
(a) a woman after her marriage, assumes the surname of the man with whom she concluded such marriage or after having assumed his or her surname, resumes a surname which she bore at any prior time;
(b) a married or divorced woman or a widow resumes a surname which she bore at any prior time;
(c) a woman, whether married or divorced, or a widow adds to the surname which she assumed after the marriage, any surname which she bore at any prior time.”

Put simply, this provision means that a person may not use a surname different from the one recorded in the population register unless authorised. The exception applies in specific circumstances, such as when a woman changes, resumes, or adds a surname because of marriage or prior use. Men, by contrast, were excluded. They could not adopt their wives’ surname at marriage, nor change their surname as a result of marriage.

Two couples in Bloemfontein encountered this obstacle when they sought to change their surnames after marriage. The first couple had agreed early in their relationship that the wife would keep her surname, which she valued as a connection to her late parents. Her husband decided to adopt her surname so that they and their children could share a common family name. The second couple also wished to preserve the wife’s maiden surname, as she was an only child, while still having a shared family name. They chose to hyphenate their surnames to represent their unity.

Together, the couples challenged the constitutionality of section 26(1)(a)–(c) of the Act in the Free State Division of the High Court, Bloemfontein. In August 2024 the High Court ruled that these provisions were unconstitutional because they discriminated on the basis of gender. In terms of section 172(2)(a) of the Constitution of the Republic of South Africa (“the Constitution”), any order of constitutional invalidity must be referred to the Constitutional Court for confirmation.

Yesterday (11 September 2025), the Constitutional Court unanimously confirmed the High Court’s ruling. It struck down section 26(1)(a)–(c) as unconstitutional for irrationally differentiating on the basis of gender in breach of section 9(1) of the Constitution, and for unfair gender discrimination in breach of section 9(3). Specifically, it held that the provisions are unconstitutional for:

(a) failing to allow a woman’s spouse to assume her surname;
(b) failing to allow a man to assume his wife’s surname after marriage;
(c) failing to allow a married or divorced man or widower to resume a surname he previously bore; and
(d) failing to allow a man, whether married, divorced, or widowed, to add to his surname any surname he previously bore.

Author’s opinion

My preference for paternal surnames (which I believe is shared by many) is rooted in deeply held cultural and spiritual beliefs rather than mere legal convention. The cultural significance of surnames, particularly paternal ones, in many societies including South Africa, complicates the idea that this is a straightforward case of gender discrimination.

Surnames are not merely administrative identifiers but are central to the construction and assertion of legal and personal identity. They signal individuality, lineage, family beliefs, religion, and community. In many African communities, surnames are predominantly patronymic i.e., inherited from the father. They symbolise family and clan identity, confer protection, and secure rights of access to family wealth, especially land, ensuring generational continuity. They connect children to their ancestors and to the broader heritage of culture, religion, ethnicity, and nation.

We often see young people raised without their biological fathers seeking to use a paternal surname. This reflects a desire for ancestral protection, for a father’s presence in rituals, and for recognition of citizenship rights. A strong belief persists that paternal ancestral blessings influence success in marriage and family life, and that a disconnection from paternal ancestry may bring misfortune.

Having said that, there are many legitimate reasons why a man may want to take his wife’s surname. He may simply prefer it, maybe because he finds it easier to use, more distinctive, or more meaningful. Her surname might carry cultural, historical, or clan significance that he wishes to embrace. His own surname might not mean much to him, or he may wish to distance himself from a family with whom he has a strained relationship. He may see adopting her surname as a gesture of commitment, equality, or resistance to patriarchal tradition.

Blended families, which are becoming more common by the day, present another reason. If she already has children who use her surname, he may want to share the same surname for unity. Professional considerations may also matter. If her surname is well-known in a field, taking it could carry recognition or continuity. In some cases, surnames function as passports to social mobility. A man marrying into a prominent family, such as the Mandela or Motsepe families, may strategically adopt his wife’s surname. Sometimes it is as simple as a matter of practicality such as that her surname may be shorter, easier to pronounce, or less common.

Ultimately, the Constitutional Court’s order does not require cultural norms to change. It is entirely possible that for the next half a century, very few men will choose to take their wives’ surnames or take on a new name after marriage. The ruling simply ensures that men who wish to do so are no longer prevented by law. Those of us who hold to tradition may continue unchanged, while those who choose differently are now entitled to do so.

You can read the High Court’s full J.J v Minister of Home Affairs decision here, and the Constitutional Court’s Jordaan v Minister of Home Affairs confirmation ruling here.

Written by Theo Tembo