Old Community of Property law hangover from apartheid ruled unconstitutional
Elderly black women who were married before 1988 can now claim their share of the 'in community of property' marriage assets.
Regional Director of the Legal Resources Centre (LRC) Sharita Samuel’s Durban Regional Office speaks to Refilwe Moloto about their victory in a groundbreaking judgment by Durban's High Court which declared unconstitutional, the legislation, that automatically registers marriages by black couples before 1988 as being out of community of property.
She says the consequences of this old apartheid law may have been missed because the Matrimonial Property Amendment Act would fix the disadvantage that the Black Administration Act (BAA) has visited upon black couples.
But unfortunately, that amendment act had limitations.Sharita Samuel, Regional Director - Legal Resources Centre (LRC)
One, it imposed a two-year window period for couples who were married in terms of the BAA to alter their marital regime.
Secondly, it required the consent of the husband in order for the woman to change that matrimonial property regime.
Many women we have encountered had no idea that was even possible in terms of the law.Sharita Samuel, Regional Director - Legal Resources Centre (LRC)
There has been a great deal of confusion and lack of information, especially in rural areas where the information was never properly disseminated over the years since apartheid.
Our client, Mrs Sithole thought she had automatically moved by default to 'in community of property'Sharita Samuel, Regional Director - Legal Resources Centre (LRC)
400,000 women are believed to be affected by this act.
That's a conservative estimate.Sharita Samuel, Regional Director - Legal Resources Centre (LRC)
She says it impacts elderly African women who would have been married during the period prior to the repeal of the BAA.
It has far-reaching implications and still needs to be confirmed by the Constitutional Court.Sharita Samuel, Regional Director - Legal Resources Centre (LRC)
KZN Deputy Judge President Mjabuliseni Madondo ruled parts of the Matrimonial Property Act 88 of 1984 were unconstitutional and invalid as they perpetuated discrimination created by a, now repealed, part of the Black Administration Act (BAA) of 1927, and so it has to now go to the ConCourt.
The effect is that now the default position for all these elderly women will be 'community of property', and anybody who elects to have 'out of community of property' will have to bring an application to do that.
Listen to the interview below:
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