Husbands approach ConCourt to allow them to take wives’ surnames

Two husbands have asked the Constitutional Court (ConCourt) to confirm a ruling that declared parts of the Births and Deaths Registration Act unconstitutional.

The law currently prevents them from taking their wives’ surnames after marriage.

On Tuesday, the ConCourt heard arguments challenging the constitutionality of Section 26(1)(a) to (c) of the Act, along with regulation 18(2)(a).

This follows a successful legal challenge by two married couples in the Free State High Court in Bloemfontein last September, where the statutes were found to be discriminatory on the basis of gender.

ALSO READ: Marriage Bill: Here’s why KZN residents want lobola regulated and consent removed for polygamy

The first couple, identified only by their initials, married in 2021.

However, they were unable to have the husband assume his wife’s surname after officials from the Department of Home Affairs indicated that the request could not be accommodated.

The second couple, Jess Donnelly-Bornman and Andreas Bornman, married in 2022 and faced similar difficulties when trying to adopt a hyphenated surname combining both of their last names.

Births and Deaths Registration Act discriminatory

During Tuesday’s proceedings, Advocate Neil Snellenburg told the ConCourt that the wife from the first couple wished to keep her surname as it held deep personal significance, having lost her biological parents at a young age.

He explained that her husband wants to take her surname so they can establish a unified family identity and raise their children under the same name.

In the case of the second couple, Snellenburg argued that the wife was an only child who wanted to preserve her maiden surname.

READ MORE: Ekurhuleni residents call for Marriage Bill to include provisions for ‘vat ‘n sit’ partners

As a result, the husband was willing to hyphenate their surnames to ensure their family shared a common identity.

The lawyer highlighted that the respondents — Minister of Home Affairs and Minister of Justice and Constitutional Development — had conceded that Section 26 does not allow a man to take the surname of his wife in a heterosexual marriage.

“It’s also conceded that the practice stems from the historic development and it’s conceded whether it differentiates and if there is no legitimate government objective or purpose that is served by that, it is discriminatory and it is objectionable and it is constitutionally invalid,” Snellenburg said.

24-month suspension

Snellenburg further highlighted that there was uncertainty regarding whether the court should read in amendments to pursuant with the Civil Union Act.

“If one attempts to read in, it becomes even more ambiguous. The state respondents did not draft the section as they would propose it should be read if there is a reading, and we respectfully submit they did not deal with the effect on regulation 18,” the advocate explained.

He also pointed out the broader implications of the case, saying a legal overhaul would require policy considerations and budget allocations.

“This matter shows that the system that is employed at this stage by the department, they are vast and substantial matters that will have to be considered policy matters should this order be granted and the constitutional validity be confirmed.

“Budget constraints and so forth, this would be a matter we submit more suitable to be referred to the legislature to redraft the provision,” Snellenburg added.

The lawyer requested that, if the ConCourt confirms the Act’s unconstitutionality, the declaration of invalidity be suspended for 24 months to allow for legislative amendments.

The court has reserved judgment.

NOW READ: Customary and civil wives battle it out in court with paternity issues exposed – here’s who won