Waheeda Amien of the Department of Public Law in the University of Cape Town’s (UCT) Faculty of Law was recently appointed to be a member of the South African Law Reform Commission’s Advisory Committee to Review Aspects of Matrimonial Property Law.
Waheeda’s research over more than two decades has focused on the need for recognition of religious family laws, particularly Muslim marriages. She is acutely aware of the implications of matrimonial property law especially as they affect women in intimate relationships that are not recognised as legal in South Africa. These include religious marriages and unmarried life partnerships. Under the current dispensation, parties who are not lawfully married to each other do not have default claims against the others’ estates.
Women are especially and adversely affected. For example, in legal disputes involving both Muslim and Hindu marriages, the South African courts refused to grant wives in those marriages an equitable or equal claim to their spouses’ estates because their religious marriages were not legally recognised.
The Advisory Committee is tasked with reviewing the current laws that regulate and/or impact on matrimonial property regimes in South Africa. The main legislation that forms the focus of the review is the Matrimonial Property Law Act 88 of 1984, which has not undergone any reforms since its enactment in 1984. Where relevant, other pieces of legislation such as the Divorce Act 70 of 1979 are also considered in the Advisory Committee’s investigation.
Waheeda believes that it is important that our laws are responsive to social changes and meet the contemporary needs of society. “It is a privilege for me to be part of this law reform process because it is affirmation of years of my work in religious family laws and gender equality. But it is also a daunting and humbling task because the ramifications of whichever legislative reform is recommended by the Advisory Committee could have far-reaching effects, especially for those who are most marginalised in South Africa, including women and children.”
The focus of the Advisory Committee has important gendered implications. Economic regulation within marriages and life partnerships can impact on intimate relationships. Often, financial destitution goes hand-in-hand with marginalisation and vulnerability within a relationship. Usually, men are in a stronger financial position than their spouses or life partners. It is women who mainly find themselves economically vulnerable within intimate relationships. If those relationships are abusive, women’s economic dependence on their husbands or partners may prevent them from exiting the relationships.
One of the positive aspects of the Advisory Committee’s brief is that it is considering the division of property in diverse forms of relationships that exist in South African society. It is therefore not only addressing marriages that are concluded lawfully such as civil marriages registered under the Marriage Act 25 of 1925, customary marriages registered under the Recognition of Customary Marriages Act 120 of 1998, and civil unions (including same-sex unions) registered under the Civil Union Act 17 of 2006. It is also investigating options for the regulation of property within life partnerships and across religious marriages.
Seeking public consultation
Issue Paper 41 (Project 100E: Review of Aspects of Matrimonial Property Law) was published on 6 September 2021, inviting comments to be submitted until 30 November 2021 from interested parties, role-players, and stakeholders. An Issue Paper informs the public that an investigation about a particular area of law has been initiated and aims to encourage input about specific issues.
Public consultation is a crucial component of democratic law-making and law reform processes because the needs of those most affected by the legislation must be considered so that the constitutional principles of equality, freedom and dignity can be promoted.
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