Back to Legislative Guidelines
Legislative Guidelines

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.

The process to approval for extending a Sectional Title Unit

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. 

Want more Snymans articles? Sign up for our monthly newsletter.

Follow Snymans on Facebook for more legal information, tips and news about property.

Recommended for you

Properties using borehole water must display a sign
Legislative Guidelines

Environmental Law: Water Rights & Water Pollution in South Africa[post_view before=""]

South Africa is a relatively water-scarce country. The regulation and implementation of water use is therefore very important.

Read More
Minors and immovable property
Legislative Guidelines

Legal rights of homeowners during the repossession process[post_view before=""]

November 2021, January 2022, September 2022, and November 2022 were pivotal months for many homeowners in South Africa who were forced to revaluate their financial positions with the interest rate increases.

Read More
Transfer and Bond Calculators
Legislative Guidelines

The Financial Intelligence Centre Act of 2001 and Cash Threshold Reporting[post_view before=""]

When does the reporting obligation arise for an accountable or reporting institution?

Read More
Minors and immovable property
Legislative Guidelines

The advantages of a life right[post_view before=""]

The Housing Development Schemes for Retired Persons Act 65 of 1988 introduced life rights as a formal form of ownership for retired people in South Africa. This legislation was implemented not only in response to the growth in the retirement village sector but also to provide legal protection to the elderly.

Read More
My name has changed - what happens to my property’s title deed?
Legislative Guidelines

Muslim marriages: A welcome Constitutional Court decision[post_view before=""]

In a long-awaited and groundbreaking decision in the area of family law, the Constitutional Court of South Africa (CC) confirmed the order of constitutional invalidity of the below mentioned Acts, granted by the Supreme Court of Appeal. This decision was confirmed on 28 June 2022.

Read More

Need more Snymans content?

Sign up for our monthly newsletter.

Legislative Guidelines

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.

The process to approval for extending a Sectional Title Unit

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. 

Want more Snymans articles? Sign up for our monthly newsletter.

Follow Snymans on Facebook for more legal information, tips and news about property.