MBABANE – Parliament wants Minister for Justice and Constitutional Affairs Prince Simelane to bring legislation that expressly addresses Section 34 of the Constitution.
Section 34(1) provides that a surviving spouse is entitled to a reasonable provision out of the estate of the other spouse, whether the other spouse died having made a valid will or not and whether the spouses were married by civil or customary rites.
In subsection two, Parliament shall, as soon as practicable, after the commencement of this Constitution, enact legislation regulating the property rights of spouses including common law husband and wife.
On Wednesday, Lobamba Lomdzala Member of Parliament (MP) Marwick Khumalo moved the motion, which received massive support in the House of Assembly.
He said the minister must, within 30 days, prepare and table the Bill. The veteran legislator was seconded by Shiselweni Region MP Lindiwe Mamba.
However, it must be said that the Minister for Justice and Constitutional Affairs in the 11th Parliament, Pholile Shakantu, had done the same.
She tabled the Bill in the House of Assembly. It was, however, never passed. At that time, there were MPs who felt the legislation must first be debated in Senate because it had provisions which touched on Eswatini culture and tradition.
Bills of this kind, they also argued, would also have to be scrutinised by the Council of Chiefs which is yet to be constituted in terms of the Constitution of the Kingdom of Eswatini.
In March 2022, government published two pieces of draft legislation – the Marriages Bill, 2022 (Bill No. 8 of 2022) and the Matrimonial Property Bill, 2022 (Bill No. 9 of 2022). While the Marriages Bill sought to unify and clarify the country’s marriage laws, the Matrimonial Property Bill was more radical, directly targeting inequalities in how spouses’ property is defined, administered and disposed of.
Section 14(1) states that “at the dissolution of a marriage, subject to the accrual system, by divorce or by the death of one or both of the spouses, the spouse whose estate shows no accrual or a smaller accrual than the estate of the other spouse or his estate if he or she is deceased, acquires a claim against the other spouse or his or her estate for an amount equal to half of the difference between the accrual of the respective estates of the spouses.”
Subsection two states that subject to the provisions of section 19(1), “a claim in terms of subsection (1) arises at the dissolution of the marriage and the right of a spouse to share in terms of this Act in the accrual of the estate of the other spouse is during the subsistence of the marriage not transferable or liable to attachment and does not form part of the insolvent estate of a spouse.”
It is said that the “accrual of the estate of a spouse is the amount by which the net value of his or her estate at the dissolution of his or her marriage exceeds the net value of his or her estate at the commencement of that marriage.”
A senior legal expert states that when a marriage ends (by divorce or death) and if a married couple used the ‘accrual system’ (a way of sharing wealth before marrying), when their marriage ends, either through divorce or the death of one or both partners, the following happens –
The partner whose assets (estate) increased by less (or not at all) during the marriage can claim money from the other partner. The amount they can claim is half the difference between how much each person’s estate grew during the marriage.
For example, if partner A’s estate grew by E50 000 and partner B’s estate grew by E10 000, the difference is E40 000. So, Partner B can claim half of that (E20 000) from Partner A.
This right to claim only happens when the marriage ends—not while they are still married. While the marriage is ongoing, either spouse cannot sell, transfer or have a court seize this right.
If one partner goes bankrupt, this right to claim does not become part of their assets for creditors to take.
What Does ‘Accrual’ Mean?
‘Accrual’ is the amount by which a person’s assets increased during the marriage.
In simple terms, it is how much richer someone became from the start of the marriage until it ended.
On May 6, 2022, Shakantu formally tabled the Matrimonial Property Bill in Parliament. The Bill proposed measures to –
Abolish marital power, thus removing the automatic right of husbands to make decisions on behalf of their wives.
Establish joint ownership of all property acquired in marriage, with both spouses enjoying equal rights and responsibilities;
Provide legal pathways for either spouse to seek fair division of property upon divorce or separation, regardless of their income or contributions;
Align national law with the constitutional principles of equality, fairness and human dignity.
It must be said that Parliament did not act on the Bill in isolation. In accordance with standing parliamentary rules and a commitment to transparency, the Portfolio Committee of the Ministry of Justice and Constitutional Affairs issued a call for public comment in June 2022.
Through a widely circulated newspaper (Times of Eswatini) advertisement, the committee invited all interested stakeholders to submit written opinions, recommendations or statements for or against the Bill.
Full article available in our publication.
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