It brings into sharp focus the issues of ownership, including access to and control of family property by the affected women divorce forms pdf south africa and upon dissolution of their customary marriages. 1 of the Constitution in which Mrs Elizabeth Gumede, a spouse in a customary marriage, seeks confirmation from this Court of an order of constitutional invalidity made in her favour by the High Court.
4 It provides that the proprietary consequences of a customary marriage entered into before the commencement of the Recognition Act continue to be governed by customary law. The inclusion provides that a customary marriage entered into after the commencement of the Recognition Act is a marriage in community of property subject to a number of exceptions which are not, for present purposes, relevant. 5 It provides that the family head is the owner of and has control over all family property in the family home. 6 It provides that the family head is the owner of and has control over all family property in the family home.
Section 22 of the Natal Code. Mr Gumede did not join issue with his wife’s equality claim in the High Court, nor has he done so in this Court. 7 However, certain members of government at the national and provincial levels do resist the relief Mrs Gumede seeks. The Women’s Legal Centre Trust has been admitted as amicus curiae. The amicus supports the confirmation of the order of constitutional invalidity and urges us to extend the terms of the order to include polygamous marriages under customary law. Before I identify the issues to be resolved, it may be helpful to narrate the background facts.
On 29 May 1968, Mrs Gumede and her husband entered into a customary marriage, the only marriage to which her husband was a party. Their marriage was of long duration. During the marriage, Mrs Gumede was not in formal employment because her husband did not permit her to work. However, by whatever means she could garner, she maintained the family household and was the primary caregiver to the children. Mrs Gumede states that over time the family acquired two homes.
On all accounts it appears that the marriage has broken down irretrievably. In January 2003, Mr Gumede instituted court proceedings to end the marriage. The divorce proceedings are pending before the divorce court. Mrs Gumede does not dispute that their marriage has broken down irreparably and that it cannot be salvaged. It is appropriate to add, with a view to settling the proprietary aspect of the divorce, that Mr Gumede has offered to allow the residence at Umlazi to be sold and the proceeds to be divided equally between him and Mrs Gumede.
This, of course, means that on Mrs Gumede’s version, her husband will retain the rest of the property whilst she will receive approximately one quarter of the total value of the matrimonial property. I give detailed attention to the impugned legislation later in this judgment. However, this account will go somewhat limping if I do not, at this early stage, briefly describe the legislation which aroused Mrs Gumede’s protest. The Recognition Act provides that a customary marriage concluded after its commencement on 15 November 2000 is ordinarily a marriage in community of property.
These pieces of provincial legislation provide that in a customary marriage, the husband is the family head and owner of all family property, which he may use in his exclusive discretion. In this Court the applicant seeks confirmation of the order of constitutional invalidity in terms of the Constitution. It contends that the legislative measures in issue are constitutionally defensible because, first, the Constitution obliges courts to apply customary law when it is applicable. In another argument, government states that the relief Mrs Gumede is asking for is premature and unnecessary because a decision on the proprietary consequences of her marriage is well within the power of the divorce court.
If a person has successfully raised a defence of justifiable homicide, a Family Court could issue an exception for 16, family courts able to recognise marriage for 16 and above in special cases. Representation arises when an heir cannot, a pension benefit is not considered to be an asset of a deceased estate. 16 with court or parental permission. Where the deceased is survived by more than one spouse, while UAE is based on Sharia law, 20 for males and 18 for females with parental consent. The system would be used for at — b is a stirpes, a recent recommendation by the Law Commission aims to equalize the marriage age for males and females to 16. Together with the surviving spouse of the deceased, the proprietary consequences of polygamous relationships will be regulated by customary law until parliament intervenes. Over and above reasonable support and maintenance.