MANY women, mostly elderly will benefit from the Constitutional Court ruling on marriages that deemed most of them automatically “out of community of property”.
The ConCourt confirmed an earlier ruling by the KwaZulu-Natal Division of the High Court of South Africa that sections of the provisions of section 21(2)(a) of the Matrimonial Property Act 88 of 1984 were unconstitutional.
In the ruling, the ConCourt declared the sections as unconstitutional and invalid to the extent that they maintain and perpetuate the discrimination created by section 22(6) of the Black Administration Act 38 of 1927.
It further said the sections maintain the default position of marriages of black couples entered into under the Black Administration Act before the 1988 amendment, that such marriages are automatically out of community of property.
In a case where a housewife, Agnes Sithole, who was assisted by the Legal Resources Centre, relayed a story of how she worked hard while married to her husband, raising the kids, taking care of their home, and assisting the husband in his business. Things didn’t go according to plan in the relationship and it ended.
The husband wanted to take everything saying they all belong to him, as they were married out of community of property.
The ConCourt said the challenged provisions also have indirect unfair discriminatory consequences for women.
“The evidence led at the High Court showed that black women are hard hit by the impugned provisions disproportionately to their husbands and the challenged provisions have far-reaching intersectional effects on black women’s rights compared to their male counterparts.”
On behalf of the ConCourt, Judge Zukisa Tshiqi said the effects of the Matrimonial Property Act was that the wife had no control over family property and “the husband may recklessly fritter away his family’s wealth, leave the property to someone else upon his death or unilaterally sell it”.
“This was the situation that Sithole had found herself in. If she had not sought legal advice, she would probably have been rendered homeless.”
Tshiqi said the fact that these kinds of provisions were still on the statute books was unacceptable.
There was no basis on which to delay and perpetuate this “unjustified unequal treatment”.
