Overview

On 11 September 2025, the Constitutional Court unanimously confirmed that section 26(1)(a)–(c) of the Births and Deaths Registration Act 51 of 1992 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 only. 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 operates while Parliament fixes the statute.

The judgment (Theron J, unanimous bench) affirms equality (s 9) and dignity (s 10), finds no justification under the limitations clause (s 36), and suspends the declaration for 24 months to allow legislative repair, coupled with an immediate, inclusive reading-in to prevent ongoing discrimination.

The impugned scheme: what it said and why it failed

Section 26(1) allowed only women to (i) take a husband’s surname after marriage; (ii) resume a prior surname; or (iii) add a prior surname to a married surname. Men required Director-General authorisation under s 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:

1. There is differentiation based on gender;
2. It serves no legitimate governmental purpose (surname regulation can be achieved without gendered rules); and
3. It is unfair discrimination on a listed ground, impairing dignity and autonomy in intimate family-naming choices. The State did not, and could not, justify the limitation under s 36.

The order—what changes today

1. Invalidity confirmed: s 26(1)(a)–(c) declared unconstitutional for violating s 9(1) and s 9(3).
2. Suspension for 24 months: Parliament must amend or replace the scheme within two years.
3. Interim relief (operative now): 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/er 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.
4. If Parliament misses the deadline, the interim regime continues until remedial legislation commences.
5. Costs: The Minister of Home Affairs must pay the applicants’ costs in the Constitutional Court (including two counsel).

Note on the Regulations: The High Court had already declared regulation 18(2)(a) unconstitutional; regulations are delegated legislation and do not require Constitutional Court confirmation. Therefore, that part of the High Court order stands without further pronouncement.

Why it matters (practical implications)

• Immediate administrative effect: Home Affairs must 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.
• Same-sex and civil unions: The gender-neutral reading-in ensures parity for partners in civil unions and same-sex marriages.
• Resuming or adding surnames: Divorced spouses and widows/widowers may resume or add previously borne surnames without gender distinction.
• Children’s surnames: Changing a child’s surname remains governed by s 25(2) of the Act; the Court declined to order a child-surname change automatically. Parents must follow the statutory application route.

Guidance for practitioners and HR/civil status officers

1. Advise clients that they may assume a spouse’s surname or combine/resume prior surnames now, citing the interim order. Prepare supporting packs: certified IDs, marriage certificate/civil union registration, completed DHA forms, and a copy of Jordaan.
2. Policy updates: Update internal SOPs, checklists, and template affidavits to remove gendered limits. Train counter staff accordingly.
3. Records & population register: Ensure eHomeAffairs/back-office systems accept husband-to-wife, wife-to-wife, husband-to-husband, and double-barrel entries without DG escalation.
4. Transitional caution: Until Parliament legislates, rely on the Court’s wording. If an office resists, reference paragraphs of the order (items 2–5) confirming the suspension and interim regime.

Constitutional logic in brief

• Equality (s 9): Gender-based differentiation in surname rules is irrational and unfair; it entrenches patriarchal defaults and denies men and some spouses equal capacity to define family identity.
• Dignity (s 10): Choosing a family name is a “defining, intimate” choice; state-imposed gender hierarchies impair personal fulfilment.
• Limitations (s 36): No “worthy or important societal goal” justifies the gendered restriction; surname stability can be preserved without discriminating.

Regional and international alignment

The Court’s approach reflects international equality standards and foreign comparators recognising gender-neutral surname choice within marriage, further evidence that South Africa’s prior rule was anachronistic. Media and commentary confirm the ruling’s scope and its two-year legislative window.

Bottom line

Effective 11 September 2025, surname choice after marriage is gender-neutral in South Africa. Use the interim order now; watch for comprehensive amendments within 24 months. For couples and practitioners, the age of one-sided, women-only surname rules is over.