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Divorce Affair

Constitutional triumph on matrimonial property rights

Customary law in KwaZulu-Natal, where the couple lived, is codified in the KwaZulu Act on the Code of Zulu Law and the Natal Code of Zulu Law, which stated that the family head, the husband, was the owner of all family property during the marriage and if the marriage was dissolved, and the wife had no claim to the property. The “inmates” of a kraal were under the supervision of the family head, according to Section 22 of the Natal Code.

“While patriarchy has long been a component of indigenous culture, the written or codified laws of customary unions produced a particularly crude and gendered type of inequality, which left women and children uniquely marginalized and vulnerable,” said former Deputy Chief Justice Moseneke.

Three petitions were filed by the Legal Resources Centre (LRC), a public-interest legal center, to enhance the rights of older, married black women to marital property, changing the trajectory of their access to matrimonial property. For more than a decade, the LRC has campaigned to safeguard these women from being evicted by their husbands' relatives in the event of their husband's death or divorce.

The Durban high court ruled in Ms Gumede's favor, declaring sections 7(1) of the Recognition Act, section 20 of the KwaZulu Act, and section 22 of the Natal Code to be unconstitutional and void. Section 7(1) stated that customary marriages occurring before the Act's inception (old marriages) were governed by customary law and were not in community of property, whereas section 7(2) stated that customary marriages occurring after the Act's inception (new marriages) were in community of property.

The Constitutional Court upheld the Durban high court's ruling and overturned the codified customary law's default out-of-community-of-property system. The Supreme Court determined that the ability to argue for property redistribution following divorce did not justify the unjust gender discrimination. Ms Gumede was able to successfully fight divorce summons and eviction procedures, allowing her to keep her part of the marital property.


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KwaZulu Act KwaZulu-Natal LRC Legal Resources Centre Moseneke


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