A deeply embedded patriarchal practice assumes that a married woman must change her surname to that of her spouse. This was standard practice at the department of home affairs. Officials would automatically change the surname of the newlywed wife to that of her husband, sometimes even in violation of the wife’s express intention to keep her maiden surname.
Women were (and are still) arbitrarily compelled to take their husbands’ surnames upon marriage as a precondition for official documents, passports and the registration of their children’s births, even though no such precondition exists in law. The department of home affairs issued its Circular 10 of 2016 to permit women to indicate their choice of surname upon registration of the marriage.
However, this circular did not put an end to the practice of violating that right.
In 1879, when women in the United States were granted the right to vote, Lucy Stone was denied that long-awaited fundamental right because she had declined to take her husband’s surname.
Almost 150 years later, women still experience bureaucratic and administrative hurdles for refusing to change their surnames to those of their husbands. In re Kayalloff, a case where a woman naturalising to become a US citizen wished to do so in her maiden name, which she used professionally, the court held that “not one professional woman has been damaged professionally by the fact that upon marriage she took the surname of her husband.” The court failed to consider the personal importance of one’s name.
The court in the 1977 case before the European Commission for Human Rights Hagmann-Husler v Switzerland was hell-bent on preserving the common surname phenomenon on the basis that allowing men to keep their surnames was the norm and denying women the same right was not an issue. It was also said that maintaining this norm would ensure that the wife and the children would be easily identifiable to third parties as members of the husband’s family.
In Jech v Burch the court correctly concluded that one’s name becomes a symbol of one’s self and that names embody our personal identity, familial history and are part of ourselves, when it allowed the parents of a child to give it a surname that was an amalgam of the mother’s and father’s surnames.
Article 16 of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women provides that both men and women have the same rights to choose a family name. Article 6 of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa states that equality and non-discrimination imply that “a married woman has the right to retain her maiden name, to use it as she pleases, jointly or separately with her husband’s surname.”
A person’s name is a fundamental part of the identity of an individual. Limitations on the choice to one’s preferred name is an infringement on the right to privacy, equality and dignity. The Human Rights Committee and the European Court of Human Rights have ruled that the right to privacy is wide enough to cover the right to a name, including the power and freedom to change it.
Under the right to private life, individuals have the right to call themselves whatever they want, and states may have an interest in managing these names and surnames for administrative purposes such as the need for clarity in identification.
What, then, is the legal position when the interests of the state interfere with the right to private life? In such instances, it is important to bear in mind that the interests of the state in the naming of individuals cannot be used to violate basic human rights such as the right to equality, privacy and dignity. Legislation that assumes that men will not change their surnames after marriages, but women should amounts to discrimination on the grounds of gender.
The European Court has held that government-imposed restrictions on name changes violate the right to private life.
And in South Africa, Section 26 of the Births and Deaths Registration Act, under then heading “assumption of another surname” provides that:
(1) Subject to the provisions of this Act or any other law, no person shall assume or describe himself or herself by or pass under any surname other than that under which he or she has been included in the population register, unless the Director-General has authorised him or her to assume that other surname: Provided that this subsection shall not apply when—
(a) 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;
(b) a married or divorced woman or a widow resumes a surname which she bore at any prior time;
(c) 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.
Section 26 of the Births and Deaths Registration Act, which assumes that only women must change their surnames to those of their husbands, is unconstitutional. Men who wish to change their surnames to those of their spouses need to lodge special applications and jump through hoops to get such applications approved. This provision is therefore unconstitutional on the grounds that it violates the right to equality and amounts to unfair discrimination on the grounds of gender. It can be seen as a form of “depersonalisation” of women by reducing them to an extension of their husband’s family.
The same can be said about the inability of women in many jurisdictions to pass on their surnames to their own children. Wives do not belong to their fathers or to their husbands and marriage is not a change in ownership.
Unless the gendered provisions in section 26 are amended to apply to both women and men, as was done with the Civil Unions Act, then section 26 remains unconstitutional.
The choice to keep the maiden name or to use the spouse’s name is a personal choice. Legislation should be amended to prevent the presumption of such an undertaking.
It is more of an administrative hurdle for women to change their surnames than it for them to retain their maiden names. Changing surnames is inconvenient, unnecessary and time-consuming as one needs to also change one’s passport, driver’s license, academic certificates, banking information, estate planning and healthcare details.
Under common law, a legal name is the name by which a person is generally known. There is no legal rule which prohibits women from retaining their maiden names. The decision to retain one’s maiden name or to double-barrel one’s surname or to use one’s husband’s surname is a personal and private choice.
A stable family is not dependent on the use of a common surname but is based on the principles of equity, justice and individual fulfilment. Each partner should have the right to choose his/her name.
Lilleonah Chivenge is master of laws candidate at the University of KwaZulu-Natal