The South African Constitutional Court is working on something that could shake up the institution of marriage in the country.

Under the patriarchal system, the notion of a woman adopting a man's surname dates back to the 15th century, when women were legally regarded as their husbands' after they married.

Advocate Brenda Madumise said that as a country that believes in and champions equality, these are the types of challenges that SA should tackle. Talking to the SABC, she said this drastic change might be uncomfortable but necessary.

"Once we believe in the right of every individual to make a choice, allow all of us to make that decision, that choice. If my choice is to have my surname hyphenated or taking both my spouse and mine to carry on, let it be because it's about the right to choose," Madumise said.

She argued that individuals have the right to choice in the country and the Constitution allows it.

"The men must ask themselves what it does to them (taking their wives' surnames). Does it strip you of your manhood? No, it doesn't. Does it tell people that I'm not married you? That you're not my spouse? No, it doesn't.

"If you take this further, one of the key challenges we have had with the Birth and Death Registrations Act is that when we want to travel overseas with a child and they do not have the same, they have to get permission from the other parent."

Before September 2024, the Births and Deaths Registration Act, specifically Sections 26(1)(a) to (c), stated that a woman's marital status determined whether she may change her surname. No provision in the Act allowed men to have the same rights as women.

"In the event that a husband wished to take over his wife's surname, he would be required to request the consent of the Director-General to do so, which request must be supported with suitable and sufficient reasons therefore.

"In August 2024, the Bloemfontein High Court heard a joint application by J and J, as well as DB and B, wherein the Court was requested to declare Section 26(1)(a) to (c) of the Births and Deaths Registration Act unconstitutional, on the basis that it discriminates on the grounds of gender," said legal group, Pagel Schulenburg.

Subsequently, the Court determined that Sections 26(1)(a) to (c) of the Act are unconstitutional because they discriminate based on gender. The issue was then sent to the ConCourt.

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