Date: 08 December 2023
Opinion Piece By: Thembi Madalane
CHALLENGES FACED BY WOMEN AT THE RURAL AREAS IN OBTAINING THEIR 50% SHARE OF THE IMMOVABLE PROPERTY AFTER DIVORCE
In terms of the Matrimonial Property Act 88 of 1984, in a marriage in community of property, all assets and liabilities acquired before and during the marriage are shared equally between spouses. This means that both partners have an equal claim to the joint estate, inclusive of properties, investments, and debts.
When a marriage in community of property ends in divorce, the assets acquired during the marriage are divided between the spouses. The division of assets in a marriage in community of property is guided by the principle of equal sharing. Each spouse is entitled to 50% of the value of the assets. This includes all assets acquired by either spouse during the marriage, regardless of individual contributions or efforts.
Despite being entitled to such an equal share, women are still battling to obtain their 50% share of an immovable property situated in a rural area. This is because land in rural areas is under the custodianship of traditional leaders. Most immovable properties in rural areas are registered in the husband’s name as the head of the family which exacerbates gender discrimination in areas were patriarchy is prominent.
The above-mentioned practice amounts to a violation of women’s rights, especially their right to equality provided in section 9 of the Constitution, 1996. The Commission observed similar issues whereby women divorced their ex-husbands and the parties had immovable properties situated in rural areas under the traditional leadership. In matters where the decree of divorce is stipulating for the division of the joint estate, the handling thereof is often referred to the traditional leadership under which jurisdiction the immovable property is falling.
However, the properties end up been transferred to the ex-husband’s relatives by the traditional leadership leaving vulnerable women and families homeless. Unfortunately, such decisions and practices often contravene section 8 (d) and (e) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA). This section states that no person may unfairly discriminate against any person on the ground of gender, including:
‘(d) any practice, including traditional, customary or religious practice, which impairs the dignity of women and undermines equality between women and men.
(e) any policy or conduct that unfairly limits access of women to land rights. finance, and other resources;’
Chapter 12 of the Constitution recognises the institution, status, and role of traditional leadership, according to customary law, subject to the Constitution. Therefore, traditional leadership should uphold constitutional values, human dignity and should be trail blazers in issues of women empowerment and gender equality. Sensitization and the promoting of gender equality must be a priority in rural and traditional communities.
Thembi Madalane is a Legal Officer at the CGE