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Legal Talk
Landmark ruling for black women married before 1988
If you are black and married before 1988, then the Black Administration Act applied to your marriage. This Act made it mandatory that these marriages were automatically out of community of property.
This meant that the estate of the couple was not regarded as a joint estate and the assets were completely separate. This was in stark difference to the way the marriages of other race groups were treated, where the default position there was that unless a couple chose to register an ante-nuptial contract, their marriage was automatically regarded to be an in community of property marriage.
The different treatment towards black marriages in terms of the Black Administration Act allowed the husband to exercise and wield enormous control and power especially in major decisions such as disposing of assets belonging to the married couple.
There are at present approximately 400 000 black women in South Africa who are affected by this provision. The result of this provision is that black women are unfairly discriminated against as they are totally at the mercy of their husbands insofar as the assets in the marriage was concerned and they are also discriminated against in that they are not treated the same as other race group marriages.
A woman affected by this Act, together with the Commission for Gender Equality, as the second applicant, brought an application against woman's husband as well as the Minister of Justice and Correctional Services.
The factual background around the case was that the man and woman were married for 47 years. It was not a happy marriage and the relationship between them deteriorated due to allegations of infidelity by the husband.
The wife, a Roman Catholic for whom divorce is frowned upon, remained in the marriage. The woman who is in her 70's told the court that she runs a home-based business selling clothing and used her earnings to pay towards the children's education at private schools and on the family and household expenses.
The couple purchased immovable property which was registered in her husband's name and which property the husband was threatening to sell. The wife said should this happen she would be left with nothing in her old age. She informed the court that as a wife she has no right of ownership in relation to those assets and the husband was able to use and dispose of them without her consent.
She said he could recklessly fritter away the family's wealth or on his death, he could leave the property to somebody else other than his wife, or unilaterally sell the family house. Her rights and interests would be negatively affected where even her basic needs such as healthcare, food and security would not likely to be met.
On 24 January 2020 the Deputy Judge President Madondo of the Durban High Court ruled that the certain provisions of the Black Administration Act was inconsistent with the Constitution.
The High Court declared that all existing civil marriages between black couples which previously was regarded as being out of community of property under the Black Administration Act, be now regarded as being a marriage in community of property. The court said that in the event a couple preferring to opt out and retain their marriage as out of community of property, they would be required to bring an application to court to register a notarial contract to that effect. The ruling is subject to confirmation by the Constitutional Court.
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