Challenging entrenched marital power in South Africa

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When Agnes Sithole’s marriage began to fall apart in 2019, she was scared. She had spent nearly 50 years raising her four children, supporting her husband’s business, and running her own. Now, her husband was threatening to sell their home without her consent, leaving her destitute. To her dismay, she found that this was actually legal: since their marriage was not under a “community of property” regime, her husband had the power to administer their joint assets against her wishes. Determined to secure her future, Ms. Sithole went to court and ultimately prevailed. Her victory in 2021 was the latest in a decades-long fight to increase gender equality and remove the vestiges of marital power – which means the husband’s ability to have his will prevail – that have long lingered in South Africa.

The recently published Women, Business and the Law brief “Challenging Entrenched Marital Power in South Africa” details the pioneering efforts of South Africans like Ms. Sithole to gradually dismantle marital power and increase women’s economic inclusion. It explores the social, political, and economic context around the passage of reforms affecting marital power in the country, revealing the many challenges that women, and especially women of color, have faced as they work toward equality.  

Marital power in Sub-Saharan Africa is not a new concept

In Sub-Saharan Africa, marital power can be traced back to legacy legislation brought to the continent by colonial powers. It was seen as a “law of nature”: because men were considered wiser, women should be subject to their rule . This relegated wives to a position akin to minors in relation to their husbands and limited women’s financial independence, ownership of property, access to credit, and inheritance.  

Figure 1. Efforts to abolish marital power are ongoing even today

Figure 1

Ms. Sithole’s victory built on the struggles of many women before her who had pushed society to take several incremental steps forward (Figure 1). In the 1950s, Bertha Solomon advocated for the creation of a judicial commission to investigate the status of women in the country. The findings were so shocking that they led to the passage of the Matrimonial Affairs Act of 1953, also known as Bertha’s Bill. While an important first step, Bertha’s Bill only allowed women to conduct certain limited transactions, such as making deposits in savings accounts, without their husband’s permission. This partially addressed marital power, but did not fully abolish it.  

However, with the country’s shift toward democracy in the 1980s came the emergence of a powerful women’s movement. The dismantling of Apartheid and the adoption of a new Constitution was the chance to push for gender equality in different areas of the law. While the movement had many successes with regard to marital power, the most impactful reform was the General Law Fourth Amendment (1993), which for the first time repealed the husband’s marital power over the person and property of his wife.  

The Amendment allowed a majority of women to be head of household and to get a job, sign a legally binding contract, register a business, and open a bank account without the permission of their husbands. It also granted them the same rights to immovable property as men. This reform was reflected in a substantial increase in South Africa’s score on the Women, Business and the Law index, from 41.9 in 1993 to 59.4 in 1995 (Figure 2). 

Figure 2. Impact of General Law Fourth Amendment on South Africa’s Women, Business and the Law 1995 score

Figure2

Yet there was still more work to be done, particularly for women in customary and religious marriages and those that had not opted into community of property like Mrs. Sithole. The judgment in her case was just the latest step in a slow, but steady, movement toward fully abolishing marital power. Upon receiving the news of the Constitutional Court’s favorable ruling, she shed tears of joy: “It dawned on me that we had saved thousands of women in marriages similar to mine.” 

What influences legal reforms for gender equality? 

While uneven, this progress toward a more inclusive democracy in South Africa is largely due to a combination of factors, including the momentum generated by transitional politics in the 1990s, the active engagement of multiple stakeholders, and historic rulings by the Constitutional Court (Figure 3). Several lessons can be drawn from the South African experience, especially as women there still experience deep-rooted discrimination.  Indeed, the movement illustrates a hard truth about achieving equality: it is most often not realized by one change, one law, or one person. Instead, people from every corner of society must come together to achieve it, piece by piece. 

Figure 3. Key factors that enabled legal reforms to marital power in South Africa

Figure 3

Realizing gender equality in South Africa and all over the world will require a concerted effort from governments, civil society, international organizations, and ordinary citizens . Reforms must reflect the context of each country and include well-functioning mechanisms for implementation and enforcement. By looking at the successes and failures of the past, other countries can ensure their own reforms are inclusive and follow better practices. Though obstacles to gender equality are likely to be in place for years to come, the story of marital power in South Africa shows that over time, they can be removed.  

Stories of reform such as this provide powerful examples that change is possible, even in the most difficult of circumstances. Women, Business and the Law is committed to assisting in this effort through its brief series, which highlights historic reforms in Sub-Saharan Africa and pinpoints contributing factors. For more stories of change, please visit http://wbl.worldbank.org.  

Authors

Nisha Arekapudi

Private Sector Specialist; Women, Business and the Law

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