Protection at last for black women in marriage
In terms of section 22(6) of the Black Administrations Act 38 of 1927 (BAA), all black marriages in South Africa were deemed to be out of community of property – and this default position was perpetuated by the Matrimonial Property Act 88 of 1984. In contrast, the default position for all other races in South African matrimonial law was, and continues to be, in community of property.
This means that the protection of being married in community of property was granted to all women except black women. Fortunately, this inequality was addressed by the Marriage and Matrimonial Property Law Amendment Act 3 of 1988, which declared that all marriages concluded out of community of property under section 22(6) of the BAA would be deemed to be marriages in community of property.
This, however, was only applicable to marriages entered into after the commencement of the 1988 amendment act – which meant that the unfair and discriminatory default position of section 22(6) of the BAA was still in place for black women who married before 1988.
In 2018, the KwaZulu-Natal High Court handed down a decision which addressed this position in its jurisdiction. The court declared that all marriages concluded out of community of property under section 22(6) of the BAA would now be deemed to be marriages in community of property. Any couples wishing to opt out of this change would need to do so by executing and registering a notarial contract to that effect.
The court’s decision brought an end to a long period of black women, particularly older black women, being denied the protection of a marriage in community of property granted to women of all other races in South Africa. This decision is in accordance with the constitution, which entrenches gender as well as racial equality.
Written by Wessel de Kock
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