The Constitutional Court declared on Monday that a KwaZulu-Natal woman married in customary law was entitled to property accumulated before she and her husband began divorce proceedings.

Justice Dikgang Moseneke said there was unanimous judgment that a previous order by the Durban High Court — which said certain aspects of law around the matter were constitutionally invalid — be upheld.

Elizabeth Gumede was married in 1968 when the customary laws of that time meant that in a divorce the man would get everything and she would be entitled to nothing.

The law has since changed, and customary marriages after 15 November 2000, are in community of property — which means both spouses have equal ownership.

However, the new law does not provide for marriages entered into before it came into being. These marriages therefore remain governed by customary laws.

Customary law in KwaZulu-Natal declares that the husband is the family head and owner of all family property.

Gumede argued in the Constitutional Court that the old law discriminates against her because she is a woman and African.

The Durban High Court had already ruled in her favour on the grounds of constitutional invalidity, and she asked the Constitutional Court to confirm this.

The KwaZulu-Natal MEC for traditional and local government and the home affairs minister opposed it.

Moseneke found in his judgment that aspects of the law for a case like Gumede's were discriminatory on the grounds of gender and therefore inconsistent with the constitution and invalid.

"The case underlines the stubborn persistence of patriarchy and conversely, the vulnerability of many women during and upon termination of a customary marriage," he said.

Sapa