Court ruling a victory for women left without financial security in marriage

24 January 2020 - 18:21 By NOMAHLUBI JORDAAN
Black couples who married before 1988 were automatically deemed to have wed out of community of property. Stock photo.
Black couples who married before 1988 were automatically deemed to have wed out of community of property. Stock photo.
Image: @wayne Djokoto from nappy.co

The Legal Resources Centre (LRC) has welcomed a judgment by the high court in Durban declaring as unconstitutional legislation that automatically registered marriages by black couples before 1988 as being out of community of property.

KwaZulu-Natal deputy judge president Mjabuliseni Madondo on Friday ruled that parts of the Matrimonial Property Act 88 of 1984 were unconstitutional and invalid as they perpetuated discrimination created by a, now repealed, part of the Black Administration Act (BAA) of 1927.

Black couples who married before 1988, had their marriages concluded under that section of the BAA, which meant that they were automatically out of community of property.

LRC obtained the judgment on behalf of Agnes Sithole.

“Ms Sithole, the first applicant, acted in her own interest and in the public interest on behalf of all affected SA women, whose right to access property and financial security in marriage was in issue in this case. There are about 400,000 women affected by the provisions of ... the BAA,” the LRC said in a statement.

“Despite the Marriage and Matrimonial Property Amendment Act 3 of 1988 (MMPAA) repealing section 22(6) of the BAA and allowing couples to change their marital regime, this was not enough to ameliorate the discrimination suffered by Ms Sithole and other women like her,” said the LRC.

“The MMPAA maintained the default marital property regime of out of community of property, a default which applied only to black couples married before 1988 and thus discriminated against black women on the grounds of both gender and race.”

The section, said the LRC, meant that a wife had no control over assets and her husband was free to dispose of the assets without considering or consulting her, and did not require her consent.

The LRC argued that the BAA continued to “adversely” affect the lives of black women, 30 years after section 22(6) was repealed.

The court ruled that part of the Matrimonial Property Act 88 of 1984 was unconstitutional and invalid to the extent that it maintained and perpetrated the discrimination created by a section of the BAA.

It further ruled that all marriages concluded out of community of property under section 22(6) of the BAA were declared to be marriages in community of property and that a spouse in a marriage declared to be in community of property could apply to court for an order that the marriage be out of community of property.

Judge Madondo found that, “the discrimination the impugned provisions perpetrate is so egregious that it should not be permitted to remain on our statute books ... The recognition of the equal worth and dignity of all black couples of a civil marriage is long overdue.”

The LRC said it welcomed the decision and the positive impact it would have on the lives of hundreds of thousands of women.


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