Marriage breakthrough

2008-06-16 00:00

Women who married under customary law prior to the enactment of the Recognition of Customary Marriages Act in 2000, will in future be able to claim the same property-ownership rights and other patrimonial benefits of marriage that all other married parties enjoy under South African law in terms of a judgment handed down by Judge Leona Theron in Durban on Friday.

Theron ruled that women continue to be unfairly discriminated against under existing sections of the applicable customary law, and that it is unconstitutional for Section 7 of the Recognition of Customary Marriages Act to distinguish between women who entered into such customary marriages before the commencement of that act, and those who did so afterwards.

In terms of the Recognition Act, customary marriages concluded after 2000 are automatically in community of property, while those who married prior to the act continued to be governed by customary law, including the KwaZulu Act on the Code of Zulu Law of 1985 and the Natal Code of Zulu Law Proclamation R151 of 1987.

These laws provide that the head of the family is the owner of all property in his family home.

A section of the Natal Code further states that the inmates of a family home irrespective of sex or age, shall, in respect of all family matters be under the control of and owe obedience to the family head.

The application was brought by an Umlazi woman, Elizabeth Gumede, who entered into a customary marriage with Amos Gumede in May 1968 and is the mother of his four children. In January 2003 Amos, a pensioner since April 2000, instituted divorce proceedings.

According to the judgment Amos Gumede owns two properties — one at Umlazi where his wife currently resides, and one at Adams Mission where he stays.

Elizabeth Gumede complained that the matrimonial property laws to which she is subject (due to their customary marriage) discriminated against her on grounds of gender and race, because she is an African woman.

She submitted that the law discriminated between her and her husband by making him the sole owner of all property acquired during their marriage and created the situation where, upon divorce, he would still remain the owner of all the property, while she would remain “property-less,” unless she could persuade a divorce court to transfer some of his property to her.

Judge Theron agreed that the laws are discriminatory on the basis of race and gender and held them to be unconstitutional.

The judge said while accepting that the divorce court has the power to make an order for maintenance and to order that the assets of one party be transferred to another, this did not resolve the problem. “The position of [Elizabeth Gumede] in this regard is sharply different to that of other women who are not black or who entered into customary marriages after the commencement of the Recognition Act,” she said.

The judgment was welcomed by the Durban Legal Resources Centre that represented Gumede.

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