The Legal Resources Centre , obtained judgment in the Durban High Court on 24 January 2020, on behalf of Ms Agnes Sithole and the Commission for Gender Equality, in a challenge to the application of sections 21 and 21 of the88 of 1984, which perpetuated the effect of the now-repealed section 22 provision of theSithole, the first applicant, acted in her own and in the public interest on behalf of all affected South African women, whose right to property and financial security in marriage was in...
38 of 1927, the marriage was automatically out of community of property and on the breakdown of her marriage, Sithole has to now confront impoverishment in her old age.38 of 1927 mandated that all civil marriages between black persons were by default out of community of property. This meant that all family assets amassed to the husband’s estate exclusively.
It is not surprising that the Sitholes assumed their marriage was in community of property. In fact, the Commission for Gender Equality states that there is no evidence that couples married under section 22 of theThe default position for all other married couples in South Africa is in community of property – except for African couples married before 1988. The consequences of this discriminatory provision have remained to haunt older African women like Sithole.
The requirement of consent posed an obstacle because men own and control family assets in marriages out of community of property and there is no evidence of men wanting to water down their rights by consenting to a marriage in community of property. With limited access to money, formal education and employment opportunities, there is little evidence of women having the power, or standing to obtain the consent of their husbands to change their marital property regimes.
A declaration that all marriages concluded out of community of property under section 22 of the Black Administration Act before 1988 are declared to be marriages in community of property;
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