Introduction:
We have all heard of the situation where women face a dilemma when they get married: should they change their surnames or keep them? Should this practice of changing still be accepted in this day and age? Women of the younger generation seem to be moving towards either no change or a double-barrel change. There is a difference in convention and the law in South Africa regarding the change of surname. This brief will discuss these differences.
History of the changing of women’s names
The history of name changing is somewhat controversial and, in instances, unsavoury.
In England, hereditary surnames are only about a thousand years old [1]. This practice was imported at the time of the Norman Conquest, and was stabilised by the 14th century [2]. However, most married women were perceived to have no surnames of their own - that upon marriage the woman became her husband’s possession [3]. Around the 15th century, practice started to reflect the scriptural connotations of the unity that marriage gave to a couple [4]. The clerical habit of designating a married woman by her husband’s surname then flourished [5]. This was perceived to be a reflection of their legal and spiritual unity [6]. Married women could still not hold property etc, and the point of marriage ended their existence as independent people [7].
By the 17th century the convention of women adopting their husband’s surnames was firmly entrenched. As William Camden states “Women with us, at their marriage, do change their surnames, and pass into their husband’s names, and justly. For they are no more twain, but one flesh” [8].
Camden further notes that the custom was specific to England, and he noted with some disapproval: “And yet in France and Netherlands, the better sort of women will retain their own name with their husbands...But I fear husbands will not like this note, for that some of their dames may be ambitiously over-pert and too forward to imitate it.” [9]
Women changing history?
Mary Wollstonecraft was a pioneering feminist. Married to the philosopher William Godwin, she chose to retain her surname but signed her name as Mary Wollstonecraft femme (i.e. wife of) [10]. This was in 1797 and Mary was considered a rebel [11]. Another rebel was Helena Normanto, who was the first female lawyer of her time to be successful in getting the British Foreign Office to issue her passport with her maiden name [12]. Further, she assisted women in America who were advocating for a similar right.
Adopting of the husband’s surname spread during the 19th century to Scotland, Ireland and Wales as well as to British colonies and ex colonies. In some countries the marital surname change became law [13].
In the US, Lucy Stone who was a 19th century suffragette and abolitionist faced the challenge from legal officials when she signed her maiden name. She sought legal assurance that there was no law forcing her to do so and she made it clear that she would retain her maiden name [14].
Ruth Hale found the Lucy Stone League which fought for women’s right to keep their maiden names and challenged an edict which did not recognise a married women by the name she chose [15]. In the 1920’s the League succeeded in getting title deeds, bank accounts etc in the women’s maiden names. However, various states countered this by passing laws forcing women to take their husband’s surnames [16].
Countries where a surname change is not allowed
In certain countries laws exist which ban women taking their husbands surnames when they marry [17]. In France, a law was passed in 1789 required people to not use any other name other than that on their birth certificate. In France, today women cannot legally take their husbands surname. However both men and women can accept the other’s surname for social and colloquial purposes [18]. Quebec passed a law in 1981 which forbids women from taking their husbands surnames after marriage [19]. In Greece there is a similar law requiring all women to keep their maiden name. This legislation was enacted in 1983 during a wave of feminist revolt. [20].
In Italy, women have a few more options even though they cannot legally change their surname since 1975 [21]. They can have their husband’s surname and theirs as a double-barrel surname. In the Netherlands, women can only take their husband’s name under special circumstances such as a sex change, a name registered incorrectly, or if the name causes severe emotion if the husband’s surname is assumed [22].
In Maylasia and Korea it is local custom for women to keep their maiden names, even though there is no law stating that they cannot adopt their husband’s surname [23]. In Spain and Chile custom dictates that women keep their surnames [24].
On the other hand, in the US, the New York Times found that only 30 % of American women have opted to keep their maiden names. This is higher than in the past [25].
However, in Japan, it is a requirement for married people to take one of the spouse’s family names. The majority of the women choose to assume their husband’s last name [26].
South African Law vs Convention
Generally, in South Africa the convention is that women choose to adopt their husband’s surname once they get married.
South African law covers this aspect of name change in Section 26 of Births and Deaths Registration Act [27] and women are still free to make the decision on their own or in consultation with their partner once married. The freedom of choice is available to women in South Africa who choose to get married as to whether they want to change their names or not. There is a current trend however, in South Africa where women are opting to keep their maiden names for professional and other reasons.
What happens to the children regarding the registration of their surnames? The Department of Home Affairs states that the child’s name should be registered by the parent who does the registering of the child. It goes on to further state that if the parents of the child are South African citizens then the father must fill out the first section [28]. This is in line with section 9 of the Births & Deaths Registration Act which allows for the child to be registered under the father’s surname unless the child is illegitimate, in those circumstances the child is registered under the mother’s surname [29]. This then leaves the question as to what happens to married couples who get married and have different surnames. Under whose name does the child get registered? The Births & Deaths Registration Act seems to suggest that the father is the person who does the registering of the child unless it is a single mother. I submit that this Act, even though amended slightly in 2010 [30], does not accommodate the current changes in society and possibly needs to be amended further. For example, given that gay and lesbian couples with different surnames may adopt infants, or be surrogate parents, what would be the situation? Is there a convention to this situation or is it decided on an individual case by case basis? The Births & Deaths Registration Act does not seem to address this situation and hence is in need of amendment to reflect the current situation in society.
Current Situation
The current situation is that in many countries the convention of adopting the husband’s surname has been abolished and women can choose what surname they wish to use. Couples are also double-barrelling when they get married. The practice of changing one’s surname still occurs but seems to be declining with the younger generations as they believe that it is an archaic fashion. Laws forbidding women from taking their husbands’ surnames or forcing them to take them are inappropriate. In this day and age it should be a choice which a woman is comfortable with and a choice which her husband respects.
Arvitha Doodnath
Legal researcher Helen Suzman Foundation
arvitha@hsf.org.za
Sources:
1. http://www.bbc.com/news/magazine-29804450
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
6. Ibid.
7. Ibid.
8. Ibid.
9. Ibid.
10. Ibid.
11. Ibid.
12. Ibid.
13. Ibid.
14. Ibid.
15. Ibid.
16. Ibid.
17. http://time.com/3940094/maiden-married-names-countries/
18. Ibid.
19. Ibid.
20. Ibid.
21. Ibid.
22. http://www.veldlaw.nl/en/services/family-law/changing-your-name-in-the-netherlands/
23. http://time.com/3940094/maiden-married-names-countries/
24. Ibid.
25. Ibid.
26. Ibid.
27. Section 26 of the Birth and Deaths Registration Act 51 of 1992 which states: A woman may assume her husband's surname, or revert to her maiden surname or a prior surname she legally bore, and since 1997 a woman may also join her surname with that of her husband's as a double-barrelled surname.
28. http://www.southafrica-newyork.net/homeaffairs/birthregistration.htm
29. Section 10 of the Births & Deaths Registration Act 51 of 1992.
30. http://www.gov.za/documents/births-and-deaths-registration-act
