A historic judgment condemning a discriminatory civil marriage law, passed in the 1980s that potentially marginalised 400 000 black women, was handed down in the KwaZulu-Natal High Court in Durban on Friday.
Sections of the Matrimonial Property Act 88 of 1984 were declared unconstitutional and invalid by Deputy Judge President Isaac Madondo.
The matter was taken to the High Court by the Legal Resources Centre on behalf of Agnes Sithole and the Commission for Gender Equality to challenge the act. The LRC said it had implications for approximately 400 000 women in South Africa.
The law was originally passed in 1984, and then amended in 1988. However, it’s perpetuation of a discriminatory law dating back to the 1920s made it problematic.
Madondo declared parts of the act unconstitutional, saying that it maintained and perpetuated discrimination created by Section 22(6) of the Black Administration Act 38 of 1927, in that the civil marriages of black couples, entered into under the act before 1988 were automatically out of community of property.
The outdated law previously stated: “A marriage between natives contracted after the commencement of this act shall not produce the legal consequences of marriage in community of property between the spouses…”
The amendment of 1988 allowed black African men and women to apply to convert their civil marriages to in community of property, but only within a two-year window, which has long since lapsed.