Religious leaders weigh in on men having the option to take their wives' surnames

RELIGIOUS leaders have weighed in on a groundbreaking judgment in the highest court in the land, whereby men will now have the option to assume their wives' surnames. 

Last week, the Constitutional Court handed down a unanimous judgment by Justice Leona Theron in an application for confirmation of an order of constitutional invalidity granted by the Free State High Court. 

The application was in relation to the constitutionality of Section 26(1)(a)-(c) of the Births and Deaths Registration Act 51 of 1992 (the Act). 

This section regulates the amendment of the forenames and surnames of South African citizens, and is linked to Regulation 18(2)(a) of the Regulations on the Registration of Births and Deaths, 2014. 

The judgment followed a joint application by two couples in the high court last year. 

In the case of the first couple, they had agreed prior to their marriage that the husband would assume his wife’s surname. However, upon registration of the marriage, they were advised by the Department of Home Affairs that it was not possible for a husband to assume his wife’s surname.

In addition to this, they also have a child who they would like to bear the surname of the mother. 

In the case of the second couple, the woman wished to retain her surname to preserve familial ties with her biological parents as an only child. The couple intended to have a double-barrel surname. They were advised by the Department of Home Affairs that only a female spouse may amend her surname. 

The high court declared Section 26(1)(a)-(c) of the Act to be unconstitutional to the extent that it discriminated on the ground of gender. The high court further held that Regulation 18(2)(a) was unconstitutional to the extent that it discriminated against male persons by failing to provide for a man to apply to change his name following a change in his marital status. 

However, the applicants sought to confirm the declaration of invalidity before the Constitutional Court. 

In handing down of judgment, Justice Theron confirmed the order of constitutional invalidity issued by the high court. 

In addition, she also ruled that Section 26(1)(a)-(c) of the Act was unconstitutional to the extent that it violated section 9(1) and  section 9(3) of the Constitution.

Justice Theron said it unfairly discriminated on the grounds of gender by failing to afford a woman the right to have her spouse assume her surname and to afford a man the right to assume the surname of the woman after marriage.

She ordered that the declaration of invalidity be suspended for a period of 24 months to enable Parliament to remedy the defects by either amending existing legislation or passing new legislation in order to ensure that all persons are afforded the right of assumption of another surname.

Reaction

Pundit Lokesh Maharajh, chairperson of the South African Hindu Maha Sabha’s Priest Council, said Hindu tradition did not require a woman to take her husband’s surname after marriage. 

“That practice actually comes from Western influence, not from Hindu scriptures. In fact, Hindu philosophy teaches equality between men and women and stresses justice and balance in society. 

“The Constitutional Court’s ruling is therefore in line with Hindu values, because it removes a one-sided, patriarchal rule and promotes fairness. Many Hindus would see this as consistent with dharma, which allows customs to evolve with the times, while staying true to the principle of equality,” he said. 

Reverend Cyril Pillay, the lead pastor at the People's Church of God in Chatsworth, said the Bible did not provide a specific directive on whether a man should take his wife's surname. 

“The concept of surnames as we know them today did not exist in Biblical times. Rather than a specific rule, the Bible encourages principles like unity and finding identity in Christ, leaving the decision of changing surnames as a personal, prayerful, and practical choice for the couple.

“However, couples should make this decision through prayer, open communication, and respect for God's timeless truths. The decision should be based on what is best and most loving for their unique family,” he said. 

Moulana Mohammed Tariq, an executive Member of the Sunni Jamiatul Ulama South Africa, said: “In Islam the wife will not assume the husband's surname, as she goes with her maiden surname. Likewise the man cannot assume the wife’s surname. This is equality.”

Meanwhile, Yolanda Akram, an attorney specialising in family law, said for generations, women were expected to change their surnames after marriage.

“South Africa’s laws have quietly slipped in something new as husbands can now take on their wives’ surnames. For some, It could be seen as equality in action and for a husband to take his wife’s surname, it could also be regarded as the ultimate gesture of devotion.

“However, there could be raised eyebrows at family gatherings. Some traditional relatives may be confused or outright horrified. In respect of cultural expectations, in many South African Indian families, a surname is not just a name, it is heritage, lineage, and identity.

“There is also the middle path. Double-barrel surnames have long been a compromise, though some may argue they make you sound more like a law firm than a married couple. At the end of the day, whether you stick to tradition or try the new trend, marriage isn’t about the name on the identity card. It’s about the bond, the family you build, and the respect that ties you together,” she said. 

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