In customary marriage can a woman who still uses her maiden name be forced to change her children's surname to their father's surname?

The long answer

Thank you for your email asking if a mother in a customary marriage who still uses her maiden name can be forced to change her children’s surname to their father’s.

The Recognition of Customary Marriages Act of 1998 which became law in 2000, gives women in customary marriages the same rights as women in civil marriages. That means, amongst other things, that one parent cannot change the children’s surname without the consent of the other.

If you register your customary marriage with Home Affairs, you are given a marriage certificate and your children can be given their father’s surname. If your customary marriage is not registered with Home Affairs, you will not have a marriage certificate and the children will be registered under your maiden name. All children’s births must be registered within 30 days, so they can get a birth certificate. You don’t have to be married to register the birth, but without a marriage certificate, Home Affairs will not give the child the father’s surname.

If the father wants them to take his name, he will need to go with you to Home Affairs and ask that the children be allowed to take his surname. Again that means you must both agree. If you were in agreement, a form would have to be filled out at Home Affairs and a fee of R70 paid.

The following documents would be needed:

• The children’s birth certificates.

• A copy of the ID, birth certificate or passport of the person whose name the children are adopting.

• An affidavit giving reasons for the change of surname.

• The applicant’s contact details (residential address, email and telephone number).

If you do not agree to change the children’s surname, your husband could try to get a court order to allow him to change it, but the courts are generally not willing to overrule the mother, unless there is very good reason for it.