Most South Africans still assume that a woman who marries a man will change her surname to that of her spouse. This patriarchal practice is so deeply embedded in our culture that officials at the Department of Home Affairs regularly break the law, changing the surnames of newly married women to that of their husbands – even when a woman instructs the department not to. To make things worse, the legislation dealing with surname changes is sexist and unconstitutionally discriminates against women on the basis of sex/gender.

In a patriarchal society in which rigid and exploitative gender roles are often imposed on (married) women – who are often expected to do all the housework and most or all of the child-rearing – it is not immediately apparent why women with an independent income would marry a man. Unless their partner is that unique man who opposes patriarchy and works tirelessly to resist its privileges, a woman might be better off not getting married at all.

Of course, marriage is not necessarily about making a logical choice after weighing up the pros and cons of getting married. Even if marriage entailed such a logical assessment, many women would still choose to marry out of respect for their culture and traditions, or for fear of family rejection or because of the (doubtful) belief that marriage provides security.

Nevertheless, there is a sharp increase in women in some prosperous countries who postpone or forgo marriage altogether, raising the question of whether some women marry men because their financial circumstances make other options more difficult to pursue. The example of Japan is instructive here. The New York Times reported over the weekend, that an increased number of women in Japan reject “the traditional path that leads to what many now regard as a life of domestic drudgery. The percentage of women who work in Japan is higher than ever, yet cultural norms have not caught up: Japanese wives and mothers are still typically expected to bear the brunt of the housework, childcare and help ageing relatives, a factor that stymies many of their careers.”

Consequently, in Japan today nearly a quarter of women aged 35 to 39 have never married, compared with about 10% two decades earlier.

I have not found similar statistics for South Africa, although Stats South Africa recently announced that half of South African marriages don’t last beyond 10 years, suggesting that the ideology of marriage does not have as strong a hold on us as it used to. What we do know is that a number of women who get married choose to retain their own surnames. But when such a woman marries a man, the Department of Home Affairs often changes her surname automatically to that of her husband.

In a recent opinion piece, Sarah Wild pointed out that the Department of Home Affairs often changes the surname of a woman who marries a man – even when that woman ticks the box on the requisite form stating she wants to keep her birth surname. Wild reported she had found more than 200 newly married women who had had their surnames changed, despite ticking the box. Worse, at least one woman reported that a Home Affairs official claimed that a woman had to get her husband’s permission to change her name back to the original.

The problem does not only lie with the patriarchal attitudes of officials at the Department of Home Affairs who assume there must be something wrong with a woman who does not want to “belong” to her husband by taking his surname. The problem starts with section 26(1) of the Births and Deaths Registration Act which assumes that women will take their husbands’ surnames.

Section 26(a) prohibits any person from assuming another surname, except when:

1. a woman after her marriage assumes the surname of the man with whom she concluded such marriage or after having assumed his or her surname, resumes a surname which she bore at any prior time;

2. a married or divorced woman or a widow resumes a surname which she bore at any prior time; and

3. a woman, whether married or divorced, or a widow adds to the surname which she assumed after the marriage, any surname which she bore at any prior time.

These provisions are gendered and assume that women will change their surnames to that of their husbands and husbands will never change their surnames to that of their wives. If you are a man wishing to change your surname to that of your wife, you have to lodge a special application with the director-general who can approve or reject the application.

I contend that section 26 of the Births and Deaths Registration Act unfairly discriminates against individuals on the basis of sex/gender in contravention of section 9(3) of the Constitution. As any constitutional law student knows, the Constitutional Court first fully formulated the test for section 9(3) in the case of Harksen v Lane. The test focuses on the potential impact of the legal provision on the group complaining of unfair discrimination. In exceptional cases, the purpose for the discrimination can be so important that it would trump consideration for those affected by the discrimination.

This is not such a case. First, section 26 reinforces the patriarchal assumption that a wife “belongs” to her husband and is thus forced to take his name and respect his authority. This is an assumption that many officials in the Department of Home Affairs seem to share. Moreover, in a patriarchal society, women – also or even especially married women – are particularly vulnerable and open to exploitation and abuse by men, adding to the intensity of the harm.

To make things worse for those who might wish to defend the constitutionality of section 26, the only possible purpose for retaining section 26 of the statute books is to protect and promote the patriarchal view that wives belong to husbands and must take their surnames.

The argument that the provision has a practical purpose as it makes it easier for everyone – especially the children – if a mother and father have the same surname, will not fly. If this was the reason for section 26, why not change it to assume that husbands take the surname of their wives? After all, wives still disproportionately serve as a primary caregiver for children, so it would make sense if the children take a wife’s surname and not the surname of the (often absent) father.

In 2010, in response to the adoption of the Civil Union Act which provides, among other things, for the solemnisation of same-sex marriages, the words “he”, “him” and “his”, wherever they occur, were replaced with the words “he or she”, “him or her” and “his or her”, respectively. On a first reading, section 26(1)(a) now makes little sense as it still talks of a woman marrying a man, but then refers to the husband as “his or her”.

I can’t imagine our courts would do that, but it is also possible to argue that the 2010 amendments have turned this reactionary provision into a profoundly progressive provision by completely scrambling the distinction between man and woman. If the section says a man can be “his” or “hers”, the very boundary between his or hers breaks down and we are approaching a place where the law starts to recognise the fluidity of gender or at least the absurdity of recognising only male and female as legal sex/gender categories.

In the absence of such a queer reading of section 26, it must be clear that the section is unconstitutional. What is surprising is that 25 years after sex/gender discrimination was outlawed by the Constitution, this provision remains on the statute books. DM