The Evolution of Women’s Property Rights
Property ownership among South African women is growing, but it wasn’t always so.
Before the era of Lillian Ngoyi, Rahima Moosa, Helen Joseph and Sophia Williams, who fearlessly lead the 9 August 1956 Protest to the Union Buildings in Pretoria petitioning against the proposed amendments to the Urban Areas Act of 1950, commonly referred to as the “pass laws” in South Africa, life was not always ‘pleasant’ for females. Women being regarded as ‘second-class citizens’ dates back a lot earlier than 1956.
The views on property rights and ownership for women have repeatedly been altered by history. In modern day terms property rights are about the legal right to acquire, own, sell and transfer property, collect and keep rents, keep one’s wages, make contracts, bring lawsuits, and, if seeking divorce, maintain some of the marriage asset.
History of Formal Property Rights in South Africa & Today
In present-day South Africa, formal law provides single women and men with equal rights to property ownership, while marriage and cohabitation contracts determine specific legal agreements between partners. Going back in history, this might have seemed absurd. It was not uncommon for a woman’s property to have been controlled by her father and if she got married, her property was then controlled by her husband. Before specific laws were passed to improve the rights of woman, husbands had both legal ownership as well as managerial rights over a wife’s personal property.
Due to the Constitution of the Republic of South Africa, today, women have the right to acquire property in South Africa whether they do it as individuals in their own name or with their spouses, depending on their marital status.
What we’re seeing as a whole in the industry is that property ownership among South African women continues to grow. An FNB report published in June 2018 showed that single women now make up an estimated 10,3% of South African buyers‚ while single male buyers top out at 7,0%. At PropertyFox, 55% of our clientele are women, showing just how much the game is changing.
“Women now make up an estimated 10,3% of South African buyers‚ while single male buyers top out at 7,0%. “
South African Customary Law
Throughout Africa as well as within South Africa, widows from rural as well as urban regions are known to lose control over their matrimonial property as the result of customary practice in traditional cultures. Traditionally, women have been denied rights to property under the South African Customary Law of Succession as women were under the guardianship of the male in the family and did not have the legal capacity to either own or acquire property. The customary rule was that the succession of property or land be governed by the principle of the male primogeniture. This meant that the eldest son of a family succeeds the entire estate after the passing of a parent, to the exclusion of younger siblings, both male and female.
However, a lot of changes has been made in improving the rights of women in this specific field:
The Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 (the “Reform Act”) came into operation on 20 September 2010, and now affects the decisions of the Constitutional Court. Which means that to align legislation with the Constitution the Reform Act abolishes the customary rule of primogeniture in as far as it applies to the law of succession, and further extends the application of the Intestate Succession Act 81 of 1987 to the deceased estates of Africans who die intestate (without a will) and provides guidelines for interpreting the Intestate Succession Act in order to give effect to the new provisions and to ensure the protection of the rights of women to inherit.
As we are all entitled to freedom of testation, a person can still choose to enforce customary law of succession in terms of the Wills Act 48 of 1958. The question of which system of law should be applied is to be determined by agreement among family members.
Evolution of Property Rights in Other Parts of the World
Women’s property rights have been key concerns when different legal systems were implemented, from the traditional common laws of England, to the United States (US) state law. As early as 1839, the British “merger of identities” doctrine law specified that women’s property was retained under the control of a husband, who was also responsible for governing family affairs. This law was also applied in the early years of the US.
In 1839, Mississippi in the US was the first English colony to challenge this law. In 1848, New York became one of the first states to grant women any rights in personal and real property, momentum started gathering in every other state in the US and by 1900 they all had to follow suit with married women in every state being able to gain substantial control over their property.
Who run the world? (just kidding…or are we? 😉 )
South African property law protects those who inherit land that has been owned in families for generations, regardless of gender or age, through various provisions as applied in family trusts. Formal law as opposed to customary law serves to strengthen women’s property rights, particularly in countries where the gap between customary and formal law is closing. Rights to equality and non-discrimination are gratifyingly the consequence of the heroic struggles of the 20,000 women who took to the Union Buildings. May their struggle never be forgotten.
At PropertyFox we take the time to understand your unique circumstances, whether as a family, young couple, retiree or single owner. Whether you are buying or selling property, our team are standing by to advise you on your journey.