Attorney unpacks ConCourt ruling on husbands taking wives’ surnames

702 and CapeTalk’s Aubrey Masango speaks with attorney Claire Thompson.

Listen below:

The ConCourt recently ruled that husbands can take their wives’ surnames.

It unanimously declared that certain provisions of the Births and Deaths Registration Act are unconstitutional for failing to allow men to assume their wives’ surnames after marriage.

This was a victory for two couples who brought the case to the court, arguing that it was archaic and patriarchal, violating equality rights. 

The first couple wanted to preserve the wife’s surname after her parents died, while the second couple wanted to adopt a double-barrelled surname because she was an only child. 

“Before the application was brought, they were told they were not allowed to do so by the Department of Home Affairs.” 

– Claire Thompson, Attorney

Per the Act, you cannot use any other surname than that you were born with.

Exceptions are in the case of a woman assuming the surname of her husband when she becomes married, or changes back to her former surname when she is divorced. 

“It’s quite easy for us to reach the conclusion that this is discriminatory against women because women are expected to assume the husband’s surname, but the case goes on further to say this is discriminatory against men because they don’t have the choice.” 

– Claire Thompson, Attorney

While some saw the ruling as a progressive move, others view it as a conflict in certain cultural practices. 

The judgment notes that in many African cultures, women retain their birth names after marriage. Children often took their mother’s clan names. 

“The judgment says it is a colonial import for a wife to assume her husband’s surname…” 

– Claire Thompson, Attorney

“This gives us a view that things have changed over the years and that what we assume is now traditional, perhaps is not as black and white as it seems.”  

– Claire Thompson, Attorney

Scroll up to the audio player to listen to the discussion.