New Era in our South African Marital Law Regime
Historically marriages of black people were subject to a separate dispensation to those of other races. Marriages of black people were governed by the Black Administration Act 38 of 1927 (“BAA”). In terms of section 22(6) of the BAA these marriages were automatically out of community of property, except where certain conditions were met. Put differently, section 22(6) of the BAA created the default position that black couples were married out of community of property. They were permitted to marry in community of property if, in the month prior to their marriage, they jointly declared to a Magistrate, commissioner or marriage officer that they intended their marriage to be in community of property and of profit and loss. That could only occur if the marriage was not contracted during the subsistence of a customary union between the husband and any woman other than his wife.
Section 22(6) of the BAA was repealed by the Marriage and Matrimonial Property Law Amendment Act 3 of 1988 (“Amendment Act”) which inserted section 21(2)(a) and 25(3) into the Matrimonial Property Act 88 of 1984 (“MPA”), thereby giving persons married out of community of property in terms of section 22(6) of the BAA an opportunity to change their matrimonial property regime within 2 years from 2 December 1988. Those who did not know that they could change their matrimonial property regime and those who were simply not aware that their marriages were automatically out of community of property, or did not appreciate the legal consequences of this, still remained married out of community of property.
In Sithole and Another v Sithole and Another  ZACC 7 the provisions of section 21(2)(a) of the MPA were challenged on the basis that it amounts to unfair discrimination. The Constitutional Court as per Tshiqi J, with all other judges concurring, held that although the amendment brought by section 21(2)(a) formally rectified the discriminatory provisions of the BAA, it failed to address the lasting discriminatory effects of these provisions. Instead, it imposed a duty on Black couples who wanted their matrimonial regimes to be similar to those of the other racial groups, to embark on certain laborious, complicated steps to enjoy equality with other races. It further held that most women did not change their matrimonial regimes when the Amendment Act came into operation, because they were unaware of their legal rights and were not apprised of the provisions of section 21(2)(a) of the MPA.
The court further held that the fact that majority of Black women did not convert their matrimonial regimes as envisaged in section 21(2)(a) can be attributed largely to the legacy of our ugly racial and unequal past. As is commonly known majority of Black women in South Africa live in the rural areas and townships and are not fully apprised of their legal rights.
The provision of section 21(2)(a) of the MPA were thus held to be inconsistent with the Constitution and declared invalid. Henceforth, the default position following the Constitutional Court judgment is that all marriages which, in terms of the BAA, were automatically out of community of property are in community of property. Affected couples, like Mrs Sithole in Sithole and Another v Sithole and Another who did not change their marital regime when the MPA was amended, have the option, like other races, to opt out and change their matrimonial regime to be out of community of property.