South Africa’s family law revolution is redefining equality at home

BUSINESS NEWS - South Africa’s Constitutional Court is advancing equality by overturning gender-based legal restrictions, ruling that, among other reforms, husbands can now take their wives’ surnames.

This landmark decision signals more than just a technical legal change, it reflects a broader commitment to fairness, equality, and personal choice in family life.

“Family law is evolving rapidly, and these changes reach into the most personal parts of people’s lives, influencing how families define their structure, share their finances, and make choices about care, identity, and equality,” says Karabo Kopeka, Managing Director at Clientèle Legal.

Equality in names and identity

The September 2025 ruling in Jordaan and Others v Minister of Home Affairs (CCT 296/24) found that the Births and Deaths Registration Act 51 of 1992 was discriminatory because it allowed only women to assume their spouse’s surname after marriage.

The Court’s interim reading-in now permits husbands to adopt or hyphenate their wife’s surname, while Parliament works on permanent legislative amendments.

The Births and Deaths Act has also been amended to better accommodate the rights of same-sex couples. To help eliminate legal obstacles and ensure equal treatment for same-sex couples, the Civil Union Amendment Act 8 of 2020 repealed provisions that allowed marriage officers to opt out of solemnising same-sex marriages.

Recognition of customary marriages

As families become more mobile and cultural practices blend, more couples find themselves navigating both customary and civil systems, often without clear guidance on how these overlap legally.

Kopeka cautions that South Africans entering into traditional marriages should be aware of provisions of the Recognition of Customary Marriages Act 120 of 1998 that legally recognise traditional marriages after certain ceremonies have been carried out - even though these marriages do not have to be registered with the Department of Home Affairs.

“When couples do not know that their traditional marriage is legally binding and thus do not formally divorce before entering into new civil marriages, these new marriages are deemed to be bigamous and therefore illegal, and succession disputes often arise.”

Fairness in divorce and antenuptial contracts

Our courts have also broadened their approach to antenuptial contracts. While spouses rely on these contracts to protect their assets, and choose the kind of contract that best suits their needs, recent rulings under the Divorce Act 70 of 1979 allow courts to adjust outcomes where fairness demands it.

This includes cases where one spouse has made non-financial contributions or faces undue hardship, thus ensuring that contracts do not result in inequitable outcomes.

Parental leave and the changing workplace

Parental leave has also undergone a transformative update. Previously, fathers were limited to 10 days of leave while birth mothers received four months structured around the birth of a child.

Following the Constitutional Court’s ruling in Van Wyk and Others v Minister of Employment and Labour (CCT 308/23), parents, including adoptive and commissioning parents, can now share up to four months and 10 days of leave between them.

This gives parents options on who the primary caregiver of their child will be and enables female breadwinners to return to work while knowing that their newborn is being cared for by the other parent.

To help families navigate these new changes with confidence, Kopeka recommends the following 3 practical steps:

Learn what the parental leave law covers and what documentation you'll need. Know how these rights apply at your workplace, as policies and UIF processes vary between employers, especially at smaller businesses.
Discuss leave plans early with your employer, especially if both parents will share time off. While Clientèle Legal helps you understand your rights, plan for any reduced income by reviewing cash flow, emergency funds, and savings priorities in advance.
Plan together, decide how to share the leave. Discuss what works best for recovery, bonding, and family routine, and set clear return-to-work plans so both parents feel supported.

South Africa’s latest family law reforms go far beyond technical legal updates, they’re reshaping how families live, work, and make decisions together. These reforms aren’t just about policy, they’re about choice, equality, balance, and reflect the everyday lives of South African families,” says Kopeka.

Photos: Supplied