Johannesburg - For any black couple who married before 1988 in the country, chances are that their union remains an out of community of property, in line with apartheid’s Black Administration Act (BAA).
The Constitutional Court will be asked in a hearing scheduled for later this month to address this legislative anomaly.
“The BAA unfairly discriminated against black women compared with other women,” said the Legal Resources Centre (LRC) in papers it filed at the apex court for the matter.
“Under Section 22(6), the default position for black couples was marriage out of community of property. By contrast, the law regulating civil marriages between couples of all other races provided that the default position was marriage in community of property.
“The BAA had the result that black women were afforded less protection than other women,” the centre added.
The LRC brought the case on behalf of Agnes Sithole, a 72-year-old housewife from Pinetown in KwaZulu-Natal.
Sithole faced becoming destitute following the collapse of the civil marriage she entered into in 1972.
She learned for the first time in 2018 that she was married out of community of property, as per the BBA.
This meant her husband could carry out a threat he had made to sell their family home without her consent.
An estimated 400 000 African women who married before 1988 could be in a position similar to Sithole’s, according to expert research the LRC cited to support the application.
The challenged legislation should be struck down for being unfairly discriminatory based on race and gender, the LRC said.
“It also discriminates on the grounds of age against elderly black women who were married before 1988. The consequences are illustrated by Ms Sithole’s position. She is in danger of losing her marital home and has been compelled to interdict her husband so that he does not dispose of it prior to this application,” the centre said.
“She has spent her adult life contributing to the joint household and raising the children, yet she cannot enjoy the fruits of her labour.”
The significance of 1988 in the matter was that amendments were made to the matrimonial law governing black people in that year.
Black couples were given two years to amend their marriage contracts.
But the Commission for Gender Equality maintained that there was nothing indicating that couples took advantage of this 1988 dispensation.
“The amendments have failed to bring real, effective or meaningful relief to black women married subject to Section 22(6) of the BAA,” the LRC said.
The apex court will be asked to declare that all marriages entered under the BAA were in community of property.
“Couples who wish to opt out of this position… may do so by executing and registering a notarial contract to this effect,” the papers said.
The Star