Historic Judgment favours black women married in apartheid era

A recent decision of the Durban High Court has made a ground-breaking judgment for black marriages concluded before 1988, ruling that all marriages prior to this date will automatically be recognized and declared as marriages in community of property. The former Black Administration Act (‘the Act’), which was subsequently repealed by the Marriage and Matrimonial Property Law Amendment Act, declared the default position of black marriages concluded prior to 1988 out of community of property.

A marriage in community of property enables both spouses, upon the dissolution of the marriage, to share in the profits of the joint household and estate i.e. each party walks away with an equal share of the joint estate. A marriage out of community of property deems both spouses’ respective estates, as at dissolution, to be individually owned i.e. as the common phrase would say… “what’s mine is mine, and what’s yours is yours”.

In the aforesaid case heard out of the Durban High Court, the party’s marriage, which was entered into prior to 1988, had irretrievably broken down, without any prospects of the restoration of the marriage. This was due to the husband’s alleged extra-marital affairs. During the subsistence of the marriage, and with the wife’s funds earned through her home-based business selling clothes, the husband purchased an immovable property in which the parties jointly resided (“the matrimonial home”). The matrimonial home was at the date of purchase registered solely in the husband’s name.

The husband, as the sole owner of the matrimonial property, and during the course of the divorce proceedings, threatened to sell the matrimonial property. Upon obtaining legal advice, the wife learnt that she was still married out of community of property and that the husband did not require her consent to sell the property, nor was she entitled to benefit from the proceeds of the sale of the matrimonial home.

The wife approached the Durban High Court for an order interdicting and restraining the husband from selling the matrimonial home pending finalization of a further application to the Court to decide on the constitutionality on the position. The consequence of the matrimonial property being sold would render the wife homeless and penniless, despite having contributed towards the property.

This ruling, which is largely viewed as a victory for black women married before 1988, overturned the default position, as it was held that the Act did not provide equal protection to black women who were married before 1988 and also has the following prejudicial effects:

  • Degrading black spouses married before 1988 in their inherent right to humanity and dignity and depriving them of the protection and benefit of the law which all couples of this Country enjoy.
  • The discrepancies contained in the Act create an injustice to black persons married prior to 1988, resulting in inequalities and depriving them of their rights to an economic interest.
  • Discrimination created by the Act exacerbate systematic disadvantages, undermines human dignity, and negatively affects the equal enjoyment of a spouse’s rights and freedoms in a manner that is comparable to discrimination on a prohibited ground.
  • Spouses married under the Act are black and have been disadvantaged by the racial policies and practices of the past, with no legitimate reason for such discrimination to exist under our new constitution; and
  • The differentiation amounts to an unfair discrimination because it is on the specified grounds of marital status, race, and gender, and it also discriminates on the grounds of age against elderly black women married before 1988, as it differentiates between the proprietary consequences applicable to women who were married under the Act prior to 1988 and who are married after 1988.

Having consideration to the above and to the position of the past where many black women were rendered vulnerable due to the reliance of the “goodwill” of their husbands who controlled the bulk of the family’s wealth, while the women tended the household, the decision by the High Court is welcomed and addresses the injustice to many black women married prior to 1988.

The Court found that the provisions of the Act were unconstitutional and invalid, and that all marriages of black persons concluded out of community of property under the Act before 1988, shall forthwith be declared and recognized as marriages in community of property. It is noted however, that the effect of the order should not affect marriages that have been terminated by death or divorce. The order has currently been referred to the Constitutional Court for confirmation.

Thato Mokone
Senior Associate
Email: Thato@pgpslaw.co.za

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