It is particularly important in any divorce situation to understand the implications of the constitution as well as the customary law applicable in South Africa. General principles of our divorce law can in certain instances be deviated from if there is other legislature which contradicts it.
A recent decision which has shed the light on customary law and our constitution in divorce matters is that of Gumede v the President of South Africa and 6 others, Women's Legal Centre as amicus curiae, (unreported case 4225/2006, 13-6-2008) High Court, Durban and Coast Local Division, Theron J. In this particular case a man had instituted divorce proceedings against his wife, and had alleged that the marriage had broken down irretrievably. During the course of the marriage the man had bought a fixed property, and his wife, although she had not made a direct financial contribution to the marriage, had made an indirect contribution in the sense that she had looked after the children and the matrimonial home.
What was particularly important in the outcome of this case was the application of the KwaZulu Act on the Code of Zulu Law 16 of 1985. In terms of this legislature the family head is the owner of all family property in his home and has control of the property attaching to the houses of his several wives, if he has more than one. In my opinion this sounds very similar to the previous matrimonial regime which existed in South African Law where the man had marital power. Such legislature was eventually scrapped, and in my opinion righteously so.
The wife in this matter no doubt argued that such a provision in the act was unconstitutional as it was discriminatory towards women. The man, on the other hand, argued that the abovementioned act was designed specifically to protect a party who had worked for assets throughout his/her life.
The descision of the court was that the matrimonial regime was indeed discriminatory, and that a court could award one party's assets to be transferred to the other party, irrespective of this legislature.
This is a most interesting court descision and extremely relevant in today's times is South Africa. In my respectful opinion, it is a correct decision.
How to serve a divorce summons.
article written by Cape Town divorce law specialist, Peter M Baker