One of the most personal decisions a couple makes after saying "I do" is which surname they will use. For decades, South African law treated this decision unequally: the Births and Deaths Registration Act 51 of 1992 allowed a wife to automatically take her husband's surname, but gave a husband no corresponding right to take his wife's surname. A husband who wanted to adopt his wife's name had to apply to the Director-General of Home Affairs under Section 26(2) and demonstrate "good and sufficient reason" — a process that was routinely refused.
That changed on 11 September 2025. In Jordaan and Others v Minister of Home Affairs and Another [2025] ZACC 19, the Constitutional Court unanimously declared Section 26(1)(a)–(c) of the Births and Deaths Registration Act unconstitutional for unfairly discriminating on the basis of gender. The Court ordered an immediate interim remedy: gender-neutral language was read into the Act, giving all spouses, regardless of gender, equal rights to assume each other's surnames upon marriage.
The current position (effective 11 September 2025): Any spouse may assume the other spouse's surname after marriage, resume a surname previously borne, or add a prior surname to the post-marriage surname. This applies equally to husbands, wives, and spouses in same-sex marriages or civil unions. Parliament has 24 months (until September 2027) to pass permanent legislation, but the interim reading-in remedy is already in effect and will remain so indefinitely if Parliament misses the deadline.
Landmark Judgment
[2025] ZACC 19 | 2025 (6) SA 323 (CC) | 2025 (11) BCLR 1249 (CC)
Constitutional Court, 11 September 2025 | Theron J (unanimous)Facts: Two married couples challenged the Act. Jana Jordaan and Henry van der Merwe had agreed before marriage that Henry would take Jana's surname to preserve her family connection to her deceased biological parents. Jess Donnelly-Bornman and Andreas Bornman wished to share a double-barreled surname. In both cases, Home Affairs officials told the husbands the system did not allow it — only women could change their surname upon marriage.
Held: Section 26(1)(a)–(c) unfairly discriminates on the ground of gender in violation of Sections 9(1), 9(3), and 10 of the Constitution. The discrimination affects both men (who cannot take their wives' surnames) and women (whose surnames are treated as inherently subordinate). No justification exists under Section 36. The tradition of women taking husbands' surnames is rooted in colonialism and patriarchal norms — not in indigenous African practice, where women historically retained their birth names.
Order: Declaration of invalidity suspended for 24 months. Immediate interim reading-in using gender-neutral language from the Civil Union Act, allowing all spouses to assume each other's surnames. If Parliament fails to legislate by the deadline, the interim provisions continue to operate indefinitely. Home Affairs ordered to pay costs.
The case began in the Free State High Court, where Judge Mhlambi heard the application on 29 August 2024. Neither the Minister of Home Affairs nor the Minister of Justice opposed the application — both conceded the law was unconstitutional. The Free State Society of Advocates joined as amicus curiae in support of the applicants. On 12 September 2024, the High Court declared the relevant provisions unconstitutional and ordered Home Affairs to amend the applicants' surnames.
Because the High Court declared an Act of Parliament unconstitutional, the order required confirmation by the Constitutional Court under Section 172(2)(a) of the Constitution. The confirmation hearing was held on 4 March 2025, and the unanimous judgment — authored by Justice Theron — was delivered on 11 September 2025.
The Constitutional Court agreed with the High Court's analysis and went further, drawing on international law, including the International Covenant on Civil and Political Rights, the UN Human Rights Committee decision in Müller and Engelhard v Namibia, and the European Court of Human Rights decision in Burghartz v Switzerland. The Court also noted that Namibia had already addressed this issue by passing gender-neutral surname legislation in December 2024.
The inability of men to assume their wives' surnames constitutes a form of differentiation. It is not merely so that men are deprived of the ability to take their wives' surnames. It also reinforces patriarchal gender norms which prescribe how women may express their identity, and it makes this expression relational to their husband, as a governmental and cultural default.— Theron J, Jordaan v Minister of Home Affairs [2025] ZACC 19 (paraphrased)
Following the Jordaan ruling, all spouses in South Africa — regardless of gender — now have the same surname options upon marriage. These rights apply equally to marriages concluded under the Marriage Act, the Civil Union Act, and the Recognition of Customary Marriages Act.
Either spouse may retain their premarital surname. No application is needed — simply indicate this when registering the marriage. Common among professionals who have built a career identity under their existing name.Example: Dr Naledi Mokoena and Johan van Wyk both keep their surnames after marriage.
Either spouse may assume the other's surname. Since the Jordaan ruling, this is no longer limited to wives taking their husbands' names. A husband may take his wife's surname, and spouses in same-sex marriages may take each other's surnames. Example: After marriage, Johan takes Naledi's surname and becomes Johan Mokoena.
Either spouse may add their spouse's surname to their own, creating a hyphenated surname. This allows both partners to carry both family names. Both spouses may choose this option — they need not make the same choice. Example: Naledi becomes Naledi Mokoena-van Wyk; Johan becomes Johan van Wyk-Mokoena.
A married, divorced, or widowed person may resume any surname they bore at any prior time. This includes a maiden name, a surname from a previous marriage, or a birth surname. Example: Sarah, previously married as Sarah du Plessis, remarries and resumes her birth name, Sarah Nkosi.
Both spouses make independent choices. There is no requirement that both spouses use the same surname. One may take the other's name while the other keeps their own. One may be hyphenated while the other isn't. The choice belongs to each individual.
Under the old regime, a husband who wished to take his wife's surname had only one route: a formal application to the Director-General of Home Affairs under Section 26(2) of the Act, where the Director-General had to be satisfied that "good and sufficient reason" existed. The associated Regulation 18(2)(a) further restricted the meaning of "good and sufficient reason" to circumstances involving a change in the marital status of a woman — effectively excluding men entirely from the simplified surname change process. In practice, Home Affairs officials simply told men that it was not possible.
The Constitutional Court's interim reading-in remedy replaced the gendered language in Section 26(1) with gender-neutral terms from the Civil Union Act, referring to "persons," "partners," and "spouses" rather than "husbands" and "wives." The interim order provides that Section 26(1) shall not apply when:(a) A person, after his or her marriage,e assumes the surname of the man or wife with whom such person concluded such marriage, or after having assumed such surname, resumes a surname which such person bore at any prior time;
(b) A married or divorced woman or man, or a widow or widower, resumes a surname which he or she bore at any time; and
(c) A person, whether married or divorced, or a widow or widower, adds to the surname which he or she assumed after the marriage, any surname which he or she bore at any prior time. This means that a husband can now take his wife's surname at the time of marriage registration — the same simple administrative process that has always been available to wives. No application to the Director-General is required. No "good and sufficient reason" must be demonstrated. It is an automatic right.
Home Affairs systems may still be catching up. While the legal position is clear, individual Home Affairs offices may not yet have updated their internal systems or training. If an official tells you it "cannot be done," refer them to the Constitutional Court order in Jordaan and Others v Minister of Home Affairs [2025] ZACC 19, paragraphs 2–5 of the order. You are legally entitled to the surname change.
South Africa legalised same-sex marriage under the Civil Union Act 17 of 2006. However, the Births and Deaths Registration Act's surname provisions were drafted around the concept of a "wife" taking a "husband's" surname — language that simply did not contemplate same-sex unions. This left same-sex spouses without a clear statutory route to assume each other's surnames upon marriage.
The Jordaan judgment resolves this. The Constitutional Court specifically chose gender-neutral language from the Civil Union Act for the interim reading-in remedy, ensuring that the right to assume a spouse's surname applies to all marriages and civil unions, regardless of the spouses' genders. As Justice Theron noted, this language "not only remedies the constitutional defect that exists by unfairly discriminating on the basis of gender, but accords more with the Constitution because it is inclusive of all identities."Same-sex spouses may now take each other's surnames, hyphenate, or keep their own names — the same options available to all other married couples.
The Jordaan ruling primarily addressed spousal surname rights, not children's surnames. Children's surnames are governed by Section 25 of the Births and Deaths Registration Act, which operates separately from Section 26.
When registering a child's birth, parents may choose to register the child under the father's surname, the mother's surname, or a double-barrelled combination of both, provided both parents consent. The Act does not impose a default, although in practice many parents still register children under the father's surname by convention.
If parents wish to change a child's surname after registration, they must apply to the Director-General of Home Affairs under Section 25(2) of the Act. The Jordaan court noted that this remedy was available to the applicant parents to change their child's surname to the new family surname once the parents' own surname change was processed.
Practical advice for new parents: If you and your spouse have chosen a shared surname or a double-barrelled family name, register the child under that surname at birth. It is significantly easier to get it right at registration than to change it afterwards.
The simplest route is to indicate your surname choice when registering the marriage at Home Affairs. The marriage officer will ask whether you wish to retain your surname or assume your spouse's surname. Since the Jordaan ruling, this question must be put to both spouses, not just the wife. State your preference clearly, and ensure it is recorded correctly on the marriage register.
Once the marriage is recorded on the National Population Register with your chosen surname, you will need to update your identity documents and notify all relevant institutions:
Apply to Home Affairs for a new Smart ID card and passport reflecting your new surname. You will need your marriage certificate, your current ID, and the prescribed application form. Processing times vary — allow 4 to 8 weeks.
Present your new ID and marriage certificate to update your bank, credit card, and investment accounts. FICA re-verification may be required.
Notify your employer and SARS of the name change to ensure payslips, IRP5 certificates, and tax records are updated. Your tax number remains the same.
If you hold a professional registration (e.g., LSSA, HPCSA, SACAP, SAICA), update it. Your qualifications remain valid — only the registered name changes.
Update your details with your medical aid, insurance policies, and retirement fund administrator. Review beneficiary nominations at the same time—marriage is an ideal trigger to ensure they are up to date.
If you own property, the surname change will be reflected in any future transactions registered at the Deeds Office. There is no obligation to update the title deed proactively, but doing so may simplify future transactions.
Your surname choice and your antenuptial contract are separate legal matters — one is about personal identity, the other about matrimonial property — but they are decided at the same time and interact in practical ways. Your ANC is registered at the Deeds Office under the names recorded on the National Population Register at the time of registration. If one or both spouses change their surname upon marriage, the ANC will reflect the pre-marriage names (since it must be signed before the marriage).
This does not affect the validity of the contract, but it means the Deeds Office record may show a different surname from the one the spouse will use going forward.
Similarly, if you draft a will at the time of signing your ANC (as we recommend in our Wills & Estate Planning service), you should consider which surname you will use — the will should ideally reflect your post-marriage name, or at a minimum clearly identify you by both your maiden name and married name to avoid confusion.
