Discriminatory apartheid-era black marriage law reversed in high court

A historic judgment condemning a discriminatory civil marriage law, passed in the 1980s that potentially marginalised 400,000 black women, was handed down in the KwaZulu-Natal High Court in Durban on Friday.

Sections of the Matrimonial Property Act 88 of 1984 were declared unconstitutional and invalid by Deputy Judge President Isaac Madondo.

The matter was taken to the High Court by the Legal Resources Centre on behalf of Agnes Sithole and the Commission for Gender Equality to challenge the act. The LRC said it had implications for approximately 400,000 women in South Africa.

The law was originally passed in 1984, and then amended in 1988. However, it’s perpetuation of a discriminatory law dating back to the 1920s made it problematic.

Madondo declared parts of the act unconstitutional, saying that it maintained and perpetuated discrimination created by Section 22(6) of the Black Administration Act 38 of 1927, in that the civil marriages of black couples, entered into under the act before 1988 were automatically out of community of property.

The outdated law previously stated: “A marriage between natives contracted after the commencement of this act shall not produce the legal consequences of marriage in community of property between the spouses…”

The amendment of 1988 allowed black African men and women to apply to convert their civil marriages to in community of property, but only within a two-year window, which has long since lapsed.

Discriminated against black woman

Commenting on the judgment, the Legal Resources Centre (LRC) said the discriminatory law haunted older African couples, particularly women in marriages that were not working out.

“The default position for all other married couples in South Africa is in community of property – except for African couples married before 1988. The consequences of this discriminatory provision have remained to haunt older African women like Ms Sithole.”

The LRC said the law previously “discriminated against black women on the grounds of both gender and race”.

“First, it disadvantaged women relative to their husbands. Evidence demonstrates that women traditionally bear greater responsibility for housework, childbearing and rearing, are less likely to be employed and even if they are employed, usually earn less than men.”

They further stated that black women earned “even less than their white counterparts because, historically, black women in South Africa had far fewer opportunities to obtain financial security through paid work”.

“For women who render unpaid contributions to their marriage and families, financial equality is somewhat easier to attain if they are married in community of property because the assets acquired during the marriage fall into the joint estate and the woman automatically becomes co-owner of those assets.”

The LRC said that Sithole is 72-years-old and entered into a civil marriage with her husband nearly 50 years ago.

‘Should not be permitted to remain on statute books’

“At the time, all African couples were married under Section 22(6) of the Black Administration Act, as were Mr and Ms Sithole. Sadly, because the couple concluded a civil marriage under [the Act], the marriage was automatically out of community of property and on the breakdown of her marriage, Ms Sithole has to now confront impoverishment in her old age.”

It said the Black Administration Act mandated that all civil marriages between black people were by default out of community of property.

“This meant that all family assets amassed to the husband’s estate exclusively.”

In his judgment, Madondo was scathing, saying: “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.”

Aside from setting aside sections of the act, Madondo also declared that all existing civil marriages of black people that were concluded out of community of property by the Black Administration Act before 1988 “are hereby declared to be marriages in community of property”.Couples affected who would prefer for their marriage to remain out of community of property, could apply to the High Court.The judgment would not affect the legal consequences of any other act done or omission or fact existing in a given marriage before the ruling was made, Madondo said.Those experiencing any administrative difficulties or practical problems as a result of the order can also approach the courts.

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