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A S and Another v G S and Another (D12515/2018) [2020] ZAKZDHC 1

27th January 2020

Click here to read the full judgment on Saflii

[1] The applicants seek a declaratory order in the following terms:

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‘1. It is declared that sections 21 (1) and 21 (2)(a) of the Matrimonial Property Act 88 of 1984 are invalid to the extent that they maintain the default of marriage out of community of property, established by section 22 (6) of the Black Administration Act 38 of 1927, in respect of marriages entered into before the commencement of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988.

2. It is declared that all marriages concluded out of community of property under section 22 (6) of the Black Administration Act are deemed to be marriages in community of property. Couples who wish to opt out of this position and alter the matrimonial property system applicable to their marriage may do so by executing and registering a notarial contract to this effect.

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3. The above orders are subject to the following conditions:

3.1 Existing burdens on the property now falling into the joint estate as a result of this order will remain in place; and

3.2 From the date of this order, chapter 3 of the Matrimonial Property Act will apply in respect of all marriages that have been converted to marriages in community under Prayer 2, unless and until affected couple has opted out in accordance with the procedure set out in Prayer 2.

4. The costs of this application are to be paid jointly and severally, by the First Respondent and, if he opposes the application the Second Respondent, jointly and severally, the one paying, the other to be absolved.

5. Further and or alternative relief.’

[2] The applicants ground their application on that s 22(6) of the Black Administration Act[1] (‘the BAA’) disadvantaged black women, in particular, by providing that except in limited circumstances, their marriages would be out of community of property. The 1988 Marriage and Matrimonial Property Law Amendment Act[2] (‘the Amendment Act’) repealed s 22(6) but this did not end the disadvantage suffered by black women who had married before that date. The Amendment Act created limited mechanisms for black women to escape this disadvantage, but those mechanisms were inadequate. A marriage out of community of property remained the default position for those who had married before the repeal of s 22(6). 

EDITED BY: Creamer Media Reporter
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