I was married in terms of the Black Administration Act on 20 November 1988. My friend recently told me that all civil marriages in terms of the Black Administration Act are now deemed to be in community of property. What do I do if my husband and I do not want to be married in community of property and want to stay married out of community of property?

In the Edelstein judgment, which was handed down in 1952, the Appellate Division (as it then was) held that there is a rebuttable presumption that all civil marriages are deemed to be in community of property by default. In other words, should a couple not conclude an antenuptial contract before they get married, their marriage will automatically be in community of property.

However, the Appellate Division went on to hold that civil marriages in terms of the Black Administration Act 38 of 1927 (an Act that is no longer in force in our law) were an exception to this rule, as marriages in terms of the Black Administration Act were out of community of property by default.

On 2 December 1988, the Marriage and Matrimonial Property Amendment Act 3 of 1988 repealed section 22(6) of the Black Administration Act, and section 21 was inserted into the Matrimonial Property Act 88 of 1984.

Section 21(2)(a) of the Matrimonial Property Act held that spouses who entered into an out of community of property marriage before 2 December 1988, in terms of section 22(6) of the Black Administration Act, may cause the Matrimonial Property Act to apply to their marriage by the execution and registration in a registry within two years after the commencement of a notarial contract to that effect.

In other words, section 21(2)(a) gave persons married in terms of the Black Administration Act prior to 2 December 1988, a two-year grace period to make the Matrimonial Property Act applicable to their marriage. If the Matrimonial Property Act was not made applicable to their marriage within the two-year grace period, their marriage remained out of community of property.

In essence, the effect of section 21(2)(a) of the Matrimonial Property Act was that if persons were married in terms of the Black Administration Act before 2 December 1988 and did not change their marital regime to be one of in community of property, their marriage would remain out of community of property.

In a nutshell, after 2 December 1988, any civil marriage entered into without the signing of an antenuptial contract before the marriage, would automatically be in community of property.

On 24 January 2020, the KwaZulu-Natal High Court held that section 21(2)(a) of the Matrimonial Property Act does not pass constitutional muster, in that it discriminates unfairly on the grounds of gender and race.

On 14 April 2021, the Constitutional Court confirmed the High Court’s order and held that section 21(2)(a) of the Matrimonial Property Act is unconstitutional and invalid for perpetuating the discrimination created by section 22(6).

The Constitutional Court ordered that all civil marriages prior to 2 December 1988 are henceforth declared to be in community of property. The Constitutional Court went on to hold that a couple married in terms of the Black Administration Act who does not wish to be married in community of property and wishes for their marriage to remain out of community of property, essentially “opting out” of this order, is required to notify the Director-General of the Department of Home Affairs in writing accordingly.

The Constitutional Court further provided that in the event of a disagreement between spouses in a marriage that becomes a marriage in community of property in terms of the order, either spouse may apply to the High Court for an order that the marriage shall not be in community of property.

The evidence adduced in the Constitutional Court was that there could be more than 400 000 marriages that are affected by the order. The effects of this order are therefore far-reaching.

Reference List:

§  Edelstein v Edelstein NO and Others 1952 (3) SA 1 (A)

§  Black Administration Act 38 of 1927

§  Matrimonial Property Act 88 of 1984

§  Marriage and Matrimonial Property Amendment Act 3 of 1988

§  Sithole and Another v Sithole and Another 2020 ZAKZDHC 1