Women and their right to elect a surname

It is common practice that a woman when marrying, either retains her maiden name, assumes her husband’s surname or changes her surname to a double-barrel surname (now very popular). Similarly, on divorce, a woman either reverts to her maiden surname, retains her married name or changes her double-barrel surname. From a registration perspective the aforesaid holds a fixed practice which must be applied uniformly. Each of the above scenarios will now be perused more closely.

Retention of maiden name
Should a souse retain her maiden surname, and a deed or document is now being lodged for registration, only reference to the maiden surname must be made, for example:

Avril Lavigne
Identity number 630313 0003 089

And

Peter Mackowitch
Identity number 650919 5094 089
Married in community of property to one another

In terms of section 15A, read in conjunction with regulation 44A of the Deeds Registries Act 47 of 1937 (DRA), the preparer assumes responsibility for the correctness of the names, etc. The preparer must thus obtain an affidavit or some other proof from the party concerned that she retained her maiden surname and that she will only utilize same.

Assumption of husband’s surname

Should a spouse assume her husband’s surname and subsequently deals with the property, reference in the deed of document must be made to her maiden surname also, in order for the registrar of deeds to ascertain the nexus between the two parties, for example:

Avril Mackowitch (born Lavigne)
Identity number 630313 0003 089

And

Peter Mackowitch
Identity number 650919 5094 089
Married in community of property to one another

The provisions of section 93 is not obligatory in this instance and the party concerned is not obliged to record the assumption of the surname against any registered deed. It is, however, optional.

Assumption of double-barrel surname
Should a woman assume a double-barrel surname, as provided for in section 26(1)(c) of Act 51 of 1992, the provisions of section 93(1) need not be insisted upon before such woman can deal with any property registered in her name in a deeds registry (see the amendment to section 93(1)(c) of the DRA).

By a way of example;

Avril Lavigne-Mackowitch (formerly Lavigne)
Identity number 630313 0003 089

And

Peter Mackowitch
Identity number 650919 5094 089
Married in community of property to one another

Reversion to maiden name

Where, after divorce or death, a woman decides to revert to her maiden surname, such woman shall not be obliged to record such resumption of surname against any registered deed or other document to enable her to deal with the property held by her under such deed or document (section 93(1)(c)).
In practice the woman is described as:

Avril Lavigne
Identity number 630313 0003 089
Unmarried

No reference to her married surname is made, however, proof must be submitted that she reverted to her maiden name, in the form of an affidavit or otherwise.

Retention of married surname

On divorce or death, a woman can retain her married surname, and no act of registration is obligatory as to the change of status. Section 17(4) of the Deeds Registries Act 47 of 1937 can be invoked, should a spouse require to update her title as to her new status. However, this is not obligatory.

For any queries please contact our property law division at the details below:

Allen West
TONKIN CLACEY PRETORIA
Tel 012 346 1278