Proprietary rights in black marriages

In Sithole and Another v Sithole and Another 2021 (6) BCLR 597 (CC), the Constitutional Court confirmed an order declaring s 21(2)(a) of the Matrimonial Property Act unconstitutional and invalid. Henceforth, all marriages which in terms of the Black Administration Act were automatically out of community of property are now marriages in community of property.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Family law – marriage - Proprietary rights in black marriages: In Sithole and Another v Sithole and Another 2021 (6) BCLR 597 (CC), the High Court made an order declaring s 21(2)(a) of the Matrimonial Property Act 88 of 1984 unconstitutional and invalid to the extent that its provisions maintain and perpetuate the discrimination brought about by s 22(6) of the Black Administration Act 38 of 1927, which provided that marriages of black couples concluded under the Black Administration Act before 1988, would automatically be out of community of property. The High Court declared that all marriages of black persons concluded out of community of property under s 22(6) before 1988 were marriages in community of property. A spouse in a marriage so declared to be a marriage in community of property was, however, given leave to apply to the High Court for an order that the marriage would remain one out of community of property, notwithstanding the High Court’s order. The High Court referred its order to the CC for confirmation.

The first applicant, a black woman married to the first respondent since 1972, had brought the application in the High Court, together with the second applicant, the Commission for Gender Equality. The first applicant had contributed financially throughout the years of the marriage. She and her husband bought an immovable property, which became the family home. When the marriage relationship between them deteriorated, the first applicant was faced with the possibility of losing the value of her share of an estate, which she had helped to build up. For religious reasons she was unwilling to have the marriage dissolved by divorce and, therefore, would not be able to utilise the remedy provided by s 7(3) to (5) of the Divorce Act 70 of 1979 to secure an equitable distribution of the couple’s assets.

The second respondent was the Minister of Justice and Correctional Services, cited in his capacity as the cabinet member responsible for the administration of the Matrimonial Property Act, and as the representative of the government.

The CC in a unanimous judgment confirmed the High Court’s declaration of invalidity.

The judgment observed that s 22(6) of the Black Administration Act created the default position that black couples were married out of community of property. They were permitted to marry in community of property if, in the month prior to their marriage, they jointly declared to a magistrate, commissioner or marriage officer that they intended their marriage to be a marriage in community of property and of profit and loss. Section 22(6) applied only to marriages of Black people and not to marriages of other races.

Section 22(6) of the Black Administration Act was repealed by the Marriage and Matrimonial Property Law Amendment Act 3 of 1988. The Amendment Act deleted s 22(6) of the Black Administration Act and inserted ss 21(2)(a) and 25(3) into the Matrimonial Property Act. The effect of the repeal for Black couples was that those who were married out of community of property under s 22(6) of the Black Administration Act had the opportunity to change their matrimonial regimes within two years from 2 December 1988. Couples were required to do so by executing and registering a notarial contract to that effect. Section 21(2)(a) of the Matrimonial Property Act permitted couples to make the accrual system provided for in Chapter I of the Matrimonial Property Act applicable to their marriages. It provided, inter alia, that ‘spouses to a marriage out of community of property entered into before the commencement of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988, in terms of s 22(6) of the Black Administration Act … may cause the provisions of Chapter I of this Act to apply in respect of their marriage by the execution and registration … of a notarial contract to that effect.’

Applicants contended that although various amendments made to the Matrimonial Property Act had ameliorated the discriminatory legacy of s 22(6), they did not remedy or reverse the negative impact of s 22(6) on black spouses. The default position of those marriages continued to be that they were out of community of property unless the couples had taken steps to alter their matrimonial property regime.

The court found that the impugned provisions perpetuated the existence of a special matrimonial regime for black couples who concluded their marriages before 1988. Marriages of black people were treated differently from those of other races. There was no justification for this differential treatment. The discrimination complained of was on one of the grounds listed in s 9(3) of the Constitution. In terms of s 9(5) of the Constitution, discrimination on one or more of the grounds listed in s 9(3) is presumed to be unfair unless proven otherwise. It was open to respondents to attempt to show that the discrimination was fair. They had not done so. It was in any event clear that they would not have been able to do so.

The provisions of s 21(2)(a) of the Matrimonial Property Act were inconsistent with the Constitution. The High Court order, therefore, had to be confirmed. Henceforth, the default position would be that all marriages which in terms of the Black Administration Act were automatically out of community of property were now marriages in community of property. Affected couples would have the option, like married couples of other races, to opt out and change their matrimonial regime to be one out of community of property, if they wished.

The court’s order would not affect the legal consequences of any act or omission existing in relation to a marriage before the court’s order was made. Nor would the order be permitted to undo completed transactions in terms of which ownership of property belonging to any of the affected spouses had since passed to third parties. A saving provision or generic order should be made in favour of a person claiming specific prejudice arising from the retrospective change of the matrimonial regime, to approach a competent court for appropriate relief.

Merilyn Rowena Kader
Legal Editor at LexisNexis