Deadline extended for comments on review of matrimonial property law

The South African Law Reform Commission (SALRC) has extended until 14 January 2022 the deadline for comments on Issue Paper 41 that deals with its review of matrimonial property law.

Issue Paper 41 replaces the SALRC’s Issue Paper 34 published on 28 August 2018.

The commission said the revision is necessary in the light of recent case law since the publication of Issue Paper 34, as well as changes to the statutory and common law. The revised paper now addresses religious marriages and unmarried life partnerships and grapples more fully with customary marriages.

The Issue Paper does not contain proposals for law reform.

“The SALRC seeks comments on any relevant issues in the paper. Comments will provide direction on the proposed scope and focus of the investigation. On the strength of these responses, a discussion paper will be prepared, setting out the SALRC’s provisional proposals. Responses to the discussion paper will then be collated and evaluated in order to prepare a report setting out the SALRC’s final recommendations,” the commission said.

It said the distribution of Issue Paper 41 had been affected by the hacking of the Department of Justice and Constitutional Development’s IT system in September. Many stakeholders have asked for the closing date of 30 November for the submission of comments to be extended.

The SALRC said the review (known as Project 100E) was motivated by the need for equality and fairness and the prohibition of discrimination based on gender, race, religion and marital status. In this regard, it said:

• South African matrimonial property law contains certain default statutory provisions that purport to apply to all marriages unless the spouses enter into antenuptial contracts. However, the applicable rules often result in substantive gender inequality leaving women (and the children for whom they are responsible) destitute at the end of the marriage.
• The different property regimes applicable to customary and Muslim marriages and the piecemeal changes in matrimonial property regimes effected by the courts as a result of litigation since the adoption of the Constitution have created different systems of property administration and distribution for different marriages.
• Spouses in marriages that receive no legal recognition, including those in religious marriages, and people who, knowingly or unwittingly, have not entered into any formal marriages have no statutory rights to share in property that has been amassed during their relationships. The negative impact of this lack of legal rights falls mainly on women, who may have contributed to their partners’ estates, but are left destitute when relationships end.
• Section 9 of the Constitution protects the right to equality and not to be discriminated against on a number of grounds, including sex, gender, sexual orientation, race, religion and marital status. Several of the statutory provisions currently treat certain marriages differently from others on these bases, without advancing any clear or rational state interest. They therefore discriminate directly on the basis of race, religion and marital status.
• Constitutional Court decisions over the years make it clear that substantive rather than formal equality is required.
• In the context of marriage and divorce, if substantive gender equality is to be achieved, laws relating to matrimonial property must, among other things, seek to place spouses in an equal position – considering the impact of factors such as the unequal division of domestic and family-care responsibilities between wives and husbands, and differences in bargaining power between men and women.

A copy of the Issue Paper, which includes the contact details for submitting comments, can be accessed at the Department of Justice and Constitutional Development’s website.