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July 22, 2020

ELIMINATION OF DISCRIMINATION IN MARRIAGES

The gender-based inequalities and discrimination cemented in the Black Administration Act, 1927 (the "BAA") was reinforced in the Matrimonial Property Act, 1984 (the "MPA"), prior to its amendment in 1988.

Section 22 (6) of the BAA provided that black marriages were automatically considered as being out of community of property. However, if the parties intended for their matrimonial regime to be in community of property, they were obliged to state such intention to the marriage officer. This situation continued until 1988 when the MPA was amended and section 22(6) of the BAA was repealed.

Effectively from 1988 all marriages in SA (including black marriages) were governed by the same laws and were considered to be in community of property unless an antenuptial contract was entered into prior to marriage. This did not deal with marriages entered into before 1988 under the BAA, which unfairly discriminated against black women based on their gender in relation to their husbands and against other civil marriages based on their race.

The repeal of the BAA can be seen as a step towards victory to eradicate the inequalities and give consistency to all marriages in South Africa. However, it did not apply retrospectively and therefore those black marriages entered into prior 1988 were still subject to the provisions of section 22(6) of the BAA.  In terms of Section 21 (2)(a) of the MPA those marriages subject to section 22 (6) of the BAA were considered to be out of community of property unless the parties to the marriage elected otherwise.

Earlier this year the High Court of KwaZulu-Natal issued a declaratory order declaring the provisions of section 21 (2)(a) of the MPA to be unconstitutional and calling for this to be amended to prevent unfair discrimination.

The court declared that all existing civil marriages, considered to be marriages out of community of property under the BAA, to now be marriages in community of property. However, those parties who intend for their marriages to remain out of community of property would have to apply to the High Court for approval. The ruling is still to be confirmed by the Constitutional Court.

The judgement of the KwaZulu Natal High Court comes as a win for the recognition of equality of all black marriages and the implementation of the constitutional rights envisaged in section 9 of the Constitution. The Constitutional Court’s ruling on this is certainly something to look forward to.