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Black women win property rights after divorce

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Four South African women have successfully overturned a set of antiquated marriage laws that denied women equal property rights after divorce. Around 400,000 elderly black women will now have equal access to matrimonial property, thanks to Elizabeth Gumede, Thokozani Maphumulo, Matodzi Ramuhovhi, and Agnes Sithole, and the Legal Resources Centre (LRC) in Durban.


In April, the Constitutional Court ruled that a section of the Matrimonial Property Act 88 of 1984 was unconstitutional because it denied black women who entered into marriages before 1988, the right to community property.


The affected women belong to a generation of black women who were born, raised and married under apartheid, a time when laws actively prevented their access to freedom of movement, education and the right to hold property. Women had borne the laborious and expensive task of applying to a court for redistribution of property when a marriage ended.


In 2008, the LRC represented Gumede who was married in 1968. Her divorce would have left her vulnerable and homeless in old age. In 2017, the LRC represented Maphumulo, who faced eviction from her home upon her husband’s death. In January 2020, Sithole challenged the Matrimonial Property Act, arguing it maintained and perpetuated the discrimination created under the Black Administration Act, which deemed marriages between black couples to be automatically out of community of property.


On March 2, 2021, the RCMA Amendment Bill was passed by parliament, ensuring that the default for all customary marriages would be community of property, unless stipulated otherwise in a prenuptial agreement.


The LRC has long fought for financial freedom for historically oppressed women, arguing access to land and property are essential to securing financial freedom, as well as individual agency and autonomy. It expects the potential of women to own and control land will foster their power of self-determination, eliminate dependence, and enable them to participate meaningfully in society.


“The trilogy of cases have secured a community of property regime for black women, strengthening their right to security of tenure and financial freedom by ensuring that a husband and his wife/wives equally share the right of ownership and other rights to family property and house property without discrimination,” the LRC said in a media release.


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