Allen West Conveyancing Update

The assumption of a common surname is traditionally seen as one of the most important consequences of a marriage. It is a highly public expression of the unification of the spouses that play a vital role in “determining identities, cultural affiliations and histories”. While there are no legal requirements that woman in heterosexual marriages should assume the name of their husbands, anecdotal evidence suggests that this custom is adhered to in the vast majority of cases. 

Section 26 of the Births and Deaths Registration Act 51 of 1992 gives legislative approval for this practice. Section 26(1) stipulates that no individual may “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” without approval from the Director-General of the Department of Home Affairs. However, section 26(1) goes on to state that married women do not require approval to assume a different surname in the following circumstances: 

26(1) …….. 

(a) a woman after her marriage assumes the surname of the man with whom she concluded such marriage or after having assumed his 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; and 

(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.” 

It must be noted that the Act does not provide any exceptions for men in heterosexual marriages wanting to assume the surnames of their wives. If a man wishes to do so he must submit an application to the Director-General to obtain the consent required for this change. The consent of the Director-General would also be required if the spouses wish to create an entirely new common surname. In these instances, the Director-General is vested with a broad discretion to authorise the change if he/she believes there is “good and sufficient reason”. 

Section 13(3) of the Civil Union Act, 17 OF 2006, stipulates that references to a ‘husband, wife or spouse’ must also apply to civil union partners. However, the exceptions contained in section 26(1)(a) – (c) of the Births and Deaths Registration Act 51 of 1992 use the terms ‘man’ and ‘woman’. On a strictly literal interpretation this would suggest that section 13 does not apply to these provisions. However, given that these gender-specific terms are used in the context of marriage to refer to married men and woman, they must be taken as being linguistically identical to ‘husband’, ‘wife’ or ‘spouse’. Therefore, section 26(1) must be interpreted with regard to section 13(3) and the references to ‘man’ and ‘woman’ in the exceptions must be read as referring to civil union partners. 

Please do not hesitate to contact me for further information.

Allen West
TONKIN CLACEY PRETORIA 
012 346 1278

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