Breaking the name barrier

What the Constitutional Court’s surname decision means for marriage in South Africa

In Jordaan v Minister of Home Affairs (2025), the Constitutional Court ruled that South African law unfairly discriminated against men by preventing husbands from automatically adopting their wife’s surname. Parliament must amend the Births and Deaths Registration Act to allow equal surname choices in marriage.

Traditionally, when a couple married, the woman assumed her husband’s surname. Very occasionally a woman would retain her own name professionally but use her husband’s name socially. In the last few decades, many women have chosen to continue using their own name on marriage or to hyphenate the two names, for various reasons. As the age of first marriage increases, a woman may have an established career and reputation; and a name change would cause confusion or require considerable personal “rebranding”. Many women reject the implicit statement of a name change: “My identity is now the wife of Mr X.” While the Births and Deaths Registration Act 51 of 1992 did not compel a woman to assume her husband’s surname, it normalised and administratively facilitated that outcome, while denying men an equivalent automatic right. The Constitutional Court has now corrected this gender asymmetry and confirmed that South African law must recognise equal surname choices in marriage.

Constitutional Court judgment

On 11 September 2025, the Constitutional Court delivered a landmark judgment in Jordaan & Others v Minister of Home Affairs & Another, declaring certain provisions of the Births and Deaths Registration Act 51 of 1992 (and its regulations) unconstitutional to the extent that they barred a husband from assuming his wife’s surname or a joint hyphenated surname following marriage. Until now, South African law treated a woman’s surname as something that might change on marriage, but a man’s as something that could not.The decision is significant in that it addresses a long-standing gendered norm in South African matrimonial law and opens the door for couples who wish to adopt naming conventions reflective of equality, identity and modern partnership.

Marriage is more than a contract describing property rights and obligations; it is also a union of identity, name and legacy. The surname that spouses use, adopt or reject carries symbolic weight and reflects cultural norms, individual identity and the interplay of tradition and transformation. Identity, choice and legal equality are as important in marriage as the ownership of property and the care of children.

Discriminatory

The Court found that the existing law permitted women to change their surnames automatically following marriage (or divorce or widowhood) under the Act, but placed no equivalent right upon men, thereby creating a differentiation on the basis of gender. That differentiation, the Court held, amounted to unfair discrimination, contrary to section 9 of the Constitution (the equality clause) and section 10 (human dignity) by perpetuating patriarchal naming norms. To remedy this, the Court declared the relevant portion of the statute invalid and suspended the order for a period to allow Parliament to amend the Act and the regulations to accord with the Constitution. Practically this means that, until amendment, the status quo remains but the “clock is ticking” for legislative action.

For many couples, the name taken or not taken upon marriage signals more than a bureaucratic change. It is about shared identity, parental unity (in terms of children’s surname), individual legacy and cultural affirmation. When a husband is barred from adopting his wife’s surname, the norm implicitly reinforces the secondary nature of the wife’s identity. It suggests the husband’s identity cannot be merged with the wife’s. As the Court pointed out, naming customs are not culturally neutral, they can cement gender-hierarchies.

A clash of modernity and tradition?

Some voices caution that the decision may clash with “traditional” naming practices in certain cultural communities or raise emotional and family tensions. Clients may feel torn between modern equality and deeply-held cultural norms. However, all the judgment does is introduce fairness and equity by increasing options. It does not compel any individual or couple to adopt a convention that does not suit them.

Practical implications

For couples about to marry, the decision signals flexibility. Even if the law is not yet amended, couples should consider and document their preferred naming approach. Will both adopt a new joint surname? Will the husband adopt the wife’s surname? Will they hyphenate? Early discussion with the attorney and with the registrar of births and deaths is advisable.

For married couples where the husband wishes to change his surname to the wife’s post-marriage, a formal application to change a name remains necessary until the legislative amendment is enacted. However, preparatory steps such as updated identity documents and consent can be taken; and costs and timelines can be investigated.

In family law disputes or divorce, naming is rarely the primary issue, but it can represent identity and contribution. For example, if a husband socially uses the wife’s surname (and children carry it) but legal documents do not reflect it, questions may arise regarding commitment, shared identity and the meaning of partnership. In a divorce case, the decision around naming may influence arguments about entitlements, especially in disputes where identity and contribution overlap.

The Jordaan decision is more than a technical amendment to a registration statute. It marks a decisive step towards aligning matrimonial practice with the values of equality, dignity and personal autonomy enshrined in our Constitution. For couples in South Africa, the message is clear: naming matters, identity matters, and the law is catching up.

What changed?

• Men previously could not automatically adopt their wife’s surname.
• The Constitutional Court found this unconstitutional.
• Parliament must amend the Act.
• Until then, formal name-change applications remain necessary.

Cape Town family lawyer can help

SD Law is ready to advise you on how this decision may affect your choice of surname and documentation. SD Law is a firm of attorneys based in Cape Town, assisting clients in Johannesburg, Durban and KwaZulu-Natal by appointment in divorce and family-law matters. Whether you are considering marriage or are already married, call family lawyer Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion about your marital name.

Simon Dippenaar

Founder & Managing Partner, SD Law

Attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

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