Matrimonial Affairs Act, 1953

This is the version of this Act as it was from 24 March 1976 to 30 June 1976. Read the latest available version.
Jurisdiction
South Africa
Citation
Act 37 of 1953
Date
Language
English
Type
Legislation
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South Africa

Matrimonial Affairs Act, 1953

Act 37 of 1953

  1. [Amended by General Law Further Amendment Act, 1962 (Act 93 of 1962) on 4 July 1962]
  2. [Amended by Maintenance Act, 1963 (Act 23 of 1963) on 22 January 1965]
  3. [Amended by Matrimonial Affairs Amendment Act, 1966 (Act 13 of 1966) on 1 June 1966]
  4. [Amended by Matrimonial Affairs Amendment Act, 1976 (Act 13 of 1976) on 24 March 1976]
(English text signed by the Governor-General.)ACTTo amend the law relating to the property rights of spouses, to orders for maintenance, to the guardianship and custody of minors and to divorce.BE IT ENACTED by the Queen’s Most Excellent Majesty, the Senate and the House of Assembly of the Union of South Africa, as follows:—

1. Limitation on powers of husband in regard to certain immovable property

(1)No husband shall be entitled, without his wife's written consent, to alienate, mortgage, burden with a servitude or confer any real right in—
(a)any immovable property which is the separate property of the wife; or
(b)any immovable property held in community, which the wife has at the marriage brought into the community and in respect of which an endorsement or note has been made under subsection (2).[paragraph (b) substituted by section 31(a) of Act 93 of 1962]
(1bis)Any immovable property held in community which during the marriage has been inherited by or donated to the wife or has been acquired in one or more of the following ways, namely, with money or other means brought into the community by her at the marriage or inherited by or donated to her during the marriage or consisting of her earnings or the proceeds of immovable property brought into the community by her at the marriage, shall for the purposes of this section be deemed to have been brought into the community by the wife at the marriage.[subsection (1bis) inserted by section 31(b) of Act 93 of 1962]
(2)The officer in charge of the deeds registry in which the property is registered shall, on the written application of the husband or wife, if he is satisfied as to the relevant facts, endorse upon the title deeds of the property, or if the husband refuses to produce any such title deed in his possession or under his control, upon the registry duplicate thereof only, and note in the appropriate registers, that it is property in respect of which paragraph (b) of sub-section (1) applies.
(3)If a wife withholds the consent required by sub-section (1), the husband may apply to a judge in chambers for an order dispensing with such consent, and the judge may grant such order if he is satisfied that the consent is unreasonably withheld.
(4)A wife may make an application under sub-section (2), and any application to a judge in connection therewith, and may appear in any proceedings under sub-section (3), without the assistance of her husband.
(5)Section seventeen of the Deeds Registries Act, 1937 (Act No. 47 of 1937), is hereby amended by the insertion in sub­section (4), after the word "therewith", of the words "and subject to the provisions of sub-section (1) of section one of the Matrimonial Affairs Act, 1953".

2. Limitation on powers of husband in regard to certain movable property

(1)No husband shall be entitled, without his wife’s written consent—
(a)to receive any remuneration due or accruing from his wife’s employer for services rendered by her, or to take possession of any such remuneration received by her; or
(b)to receive any compensation awarded to the wife in respect of personal injuries sustained by her or to take possession of any such compensation received by her; or
(c)to withdraw any deposit standing in the name of his wife in the Post Office Savings Bank of the Republic or in a building society or in any account in a banking institution as defined in section 1 of the Banks Act, 1965 (Act No. 23 of 1965), or to take possession of any moneys withdrawn by her therefrom; or[paragraph (c) substituted by section 1(a) of Act 13 of 1966]
(d)to alienate or pledge any shares held by his wife in a building society, to receive any dividends on or the proceeds of such shares or to take possession of any such dividends or proceeds received by her; or
(e)to receive any amount payable in terms of any insurance policy taken out by his wife for the purpose of providing for the education or advancement of her child, the premiums of which have been paid by her, or to take possession of any such amount received by her, or to deal in any manner with any rights under any such policy; or
(f)to alienate or pledge any tool or implement of trade with which his wife is earning any remuneration.
(2)If any shares in a building society are held by a married woman, the society shall not register any transfer of those shares without her written consent, except in pursuance of a sale in execution of a judgment of a competent court.
(3)
(a)No remuneration, compensation, deposit, share, dividend, proceeds, amount, right, tool or implement referred to in sub-section (1), shall be attached or sold in execution for any liability incurred by the husband for or in connection with the supply of intoxicating liquor.
(b)No property in respect of which an order under sub­section (4) is in operation, shall be attached or sold in execution for any liability of the joint estate except for any liability incurred in respect of necessaries for the joint household or for any order of costs awarded against the wife in any legal proceedings instituted by her in terms of sub-section (6).
(4)
(a)A wife shall, on prima facie proof that her husband has deserted her and is not residing with her, and that she has at any time during the period of the desertion acquired or become entitled to any movable property, be entitled to an order of a judge or magistrate of a court within whose area of jurisdiction she resides, declaring the property (which shall be described in the order in such manner as to be identifiable) to be free from the control of her husband, and prohibiting the husband from dealing in any manner with the property.
(b)Any judge or magistrate of such court may, on good cause shown, rescind or vary any such order.
(c)A wife shall for the purposes of this sub-section be deemed to have been deserted by her husband if she is living apart from her husband because of his refusal to reside with her or because of repeated assaults or other acts of cruelty or because he is an habitual drunkard or because of his refusal or neglect without sufficient cause to supply her or his children with the necessaries of life when able so to do or because of his detention in any prison, gaol or other institution.
(5)
(a)A married woman, whether under the marital power or not, may be a depositor in any account in a banking institution as defined in section 1 of the Banks Act, 1965, and may without the consent or assistance of her husband execute all necessary documents, give all necessary acquittances and cede, pledge, borrow against and generally deal with her deposit in such account and enjoy all the privileges and be liable to all the obligations attaching to depositors in any such account in such banking institution: Provided that a married woman who is under the marital power, may not, without the consent of her husband overdraw on a current account in which she is a depositor in such a banking institution to an amount exceeding the total amount of the deposits standing to her credit in any account in such banking institution.
(b)Save with her written consent, the husband of a married woman who has become a depositor with a banking institution in terms of paragraph (a), shall not be entitled to demand from such banking institution particulars concerning deposits she has with that banking institution.
[subsection (5) substituted by section 1(b) of Act 13 of 1966]
(6)Every wife shall be entitled, without the assistance of her husband—
(a)to receive or sue for remuneration due from her employer for services rendered by her;
(b)to receive or sue for any compensation, deposit, dividend or proceeds referred to in paragraph (b), (c) or (d) of sub-section (1);
(c)to take out an insurance policy for the purpose of pro­viding for the education or advancement of her child, and to receive or sue for any amount payable in terms of any such policy; and
(d)to institute legal proceedings in connection with any share, policy, tool or implement referred to in sub­section (1) which has been alienated or pledged or any right thereunder which has been dealt with without her consent, or in connection with any attachment or sale in contravention of sub-section (3), or for the purpose of obtaining an order under sub-section (4), or to protect herself against any act by her husband which is or would be unlawful in terms of sub-section (1), or in conflict with an order under sub-section (4).

3. Liability of spouses for household necessaries

(1)Spouses married out of community of property shall against third parties be liable jointly and severally for all debts incurred by either of them in respect of the necessaries for the joint household.
(2)A spouse married out of community of property shall be liable to contribute pro rata according to his or her income in respect of necessaries for the joint household.
(3)A spouse married out of community of property shall have a right of recourse against the other spouse in so far as he or she has contributed more in respect of necessaries for the joint household than is provided by subsection (2).
[section 3 substituted by section 1 of Act 13 of 1976]

4. ***

[section 4 repealed by section 16 of Act 23 of 1963]

5. Guardianship and custody of minors

(1)Any provincial or local division of the Supreme Court or any judge thereof may—
(a)on the application of either parent of a minor in pro­ceedings for divorce or judicial separation in which an order for divorce or judicial separation is granted; or
(b)on the application of either parent of a minor whose parents are divorced or are living apart,
if it is proved that it would be in the interests of the minor to do so, grant to either parent the sole guardianship (which shall include the power to consent to a marriage) or sole custody of the minor, or order that on the predecease of the parent named in the order, a person other than the survivor shall be the guardian of the minor, to the exclusion of the survivor or otherwise.
(2)An order under sub-section (1) granting the sole guardian­ship or custody of a minor whose parents are living apart to a parent shall, if the parents become reconciled and live together again as husband and wife, lapse with effect from the date on which the parents commence to live together again.
(3)Subject to any order of court—
(a)a parent to whom the sole guardianship or custody of a minor has been granted under subsection (1), or a father or a mother upon whom a children's court has under section 60 (1) of the Children's Act, 1960 (Act No. 33 of 1960), conferred the exclusive right to exercise any parental powers in regard to a minor, may by testamentary disposition appoint any person to be the sole guardian or to be vested with the sole custody of the minor, as the case may be; and
(b)the father of a minor to whom the sole guardianship of the minor has not been granted under subsection (1) or upon whom a children's court has not conferred the exclusive right to exercise any parental powers in regard to the minor, shall not be entitled by testamentary disposition to appoint any person as the guardian of the minor in any other manner than to act jointly with the mother.
[subsection (3) substituted by section 2(a) of Act 13 of 1966]
(4)If the mother of a minor does not consent to the marriage of the minor, the consent of the father (whether or not he has in any proceedings been granted the sole custody of the minor), shall not be sufficient, unless he has been granted the sole guardianship of the minor.
(5)The court or a judge may—
(a)where a parent has appointed a guardian or custodian as provided in paragraph (a) of sub-section (3); or
(b)where a guardian has been appointed to a minor by the father, to act jointly with the mother,
upon the application of the other parent, or of the guardian or mother, as the case may be, made after the death of the testator, make such order in regard to the guardianship or custody of the minor as the court or judge may deem in the interests of the minor.
(6)If an order under section 60 of the Children's Act, 1960, is rescinded, or if an order under subsection (1) of this section granting the sole guardianship or custody of a minor to a parent, lapses or is rescinded or is varied in such a manner that the parent is no longer the sole guardian or vested with the sole custody of the minor, any disposition made under subsection (3)(a) shall lapse.[subsection (6) substituted by section 2(b) of Act 13 of 1966]
(7)A wife may make any application referred to in this section, and any application to a court in connection therewith, without the assistance of her husband.

6. Amendment of section 1 of Act 22 of 1939

Section one of the Matrimonial Causes Jurisdiction Act, 1939, is hereby amended by the substitution for sub-section (1) of the following sub-section:"
(1)Any provincial or local division of the Supreme Court of South Africa shall have jurisdiction to try an action instituted by a wife against her husband for divorce or for restitution of conjugal rights or for judicial separation, if the wife has been ordinarily resident within the area of jurisdiction of that division for a period of one year im­mediately preceding the date on which the proceedings are instituted, and if—
(a)in any case in which the husband has deserted the wife and has departed from the Union or has been deported from the Union, he is at the said date or was imme­diately before the desertion or deportation domiciled within the Union;
(b)in any other case of an action for divorce or for restitu­tion of conjugal rights, the husband is, at the said date domiciled within the Union; or
(c)in any other case of an action for judicial separation, the husband is, at the said date, domiciled or resident within the Union.".

7. Amendment of section 5 of Act 22 of 1939

Section five of the Matrimonial Causes Jurisdiction Act, 1939, is hereby amended by the insertion after the word "custody" wherever it occurs, of the word ", guardianship".

8. Amendment of section 6 of Act 22 of 1939

Section six of the Matrimonial Causes Jurisdiction Act, 1939, is hereby amended by the substitution for the words "is domiciled", of the words "is or was domiciled or is resident, as the case may be".

9. Insertion of section 6bis in Act 22 of 1939

The following section is hereby inserted in the Matrimonial Causes Jurisdiction Act, 1939, after section six:"

6bis. Recognition of certain decrees and orders

(1)The validity of any decree or order made in any country in any case in which the husband is not domiciled in that country, under the provisions of any law which are declared by the Governor-General by proclamation in the Gazette to be provisions substantially corresponding to the relevant provisions of paragraph (a) of sub-section (1) of section one, or of section four or five, read with the said paragraph, shall be recognized by the courts of the Union.
(2)No proclamation shall be issued under subsection (1) unless the Governor-General is satisfied that adequate provision is made by the law of the country concerned for the recognition by the courts thereof of the decrees and orders made in any case in which the husband is not domiciled within the Union, under the said paragraph, or under section four or five, read with the said paragraph.
(3)The Governor-General may at any time withdraw any such proclamation.".

10. Maintenance orders on divorce

(1)The court granting a divorce may, notwithstanding the dissolution of the marriage—
(a)make such order against the guilty spouse for the maintenance of the innocent spouse for any period until the death or until the remarriage of the innocent spouse, whichever event may first occur, as the court may deem just; or
(b)make any agreement between the spouses for the maintenance of one of them, an order of court,
and any court of competent jurisdiction may, on good cause shown (which may be a cause other than the financial means of either of the respective spouses) rescind, suspend or vary any such order.
(2)Any court of competent jurisdiction may at any time upon the application of either party to an agreement for the maintenance of one of them entered into prior to the date of commencement of this Act between spouses who have been divorced, make such an agreement an order of court, and any court of competent jurisdiction may on good cause shown (which may be a cause other than the financial means of either of the respective spouses) rescind, suspend or vary any such order, or any order made prior to the date of commencement of this Act by which an agreement between spouses who have been divorced, for the maintenance of one of them, was made an order of court.

11. Short title

This Act shall be called the Matrimonial Affairs Act, 1953.
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History of this document

01 April 1997
Read this version
01 March 1994
Read this version
01 December 1993
Read this version
01 November 1984
Read this version
01 July 1976
Amended by Divorce Act, 1979
Read this version
24 March 1976 this version
01 June 1966
Read this version
22 January 1965
Read this version
04 July 1962
Read this version
28 October 1953
Commenced
Read this version
01 October 1953
Assented to

Subsidiary legislation

Title Numbered title
Matrimonial Affairs Amendment Act, 1976 Act 13 of 1976

Cited documents 1

Legislation 1
  1. Deeds Registries Act, 1937

Documents citing this one 45

Gazette 30
  1. South Africa Government Gazette Regulation Gazette dated 1969-04-18 number 2357
  2. South Africa Government Gazette Regulation Gazette dated 1973-03-23 number 3815
  3. South Africa Government Gazette Regulation Gazette dated 1976-03-12 number 5003
  4. South Africa Government Gazette Regulation Gazette dated 1978-12-29 number 6261
  5. South Africa Government Gazette Regulation Gazette dated 1982-02-26 number 8054
  6. South Africa Government Gazette Regulation Gazette dated 1986-07-11 number 10345
  7. South Africa Government Gazette Regulation Gazette dated 1986-08-08 number 10378
  8. South Africa Government Gazette Regulation Gazette dated 1989-12-22 number 12225
  9. South Africa Government Gazette Regulation Gazette dated 1990-11-30 number 12873
  10. South Africa Government Gazette dated 1957-06-14 number 5887
  11. South Africa Government Gazette dated 1963-03-29 number 468
  12. South Africa Government Gazette dated 1963-08-16 number 578
  13. South Africa Government Gazette dated 1965-06-04 number 1128
  14. South Africa Government Gazette dated 1967-03-01 number 1670
  15. South Africa Government Gazette dated 1968-06-21 number 2106
  16. South Africa Government Gazette dated 1972-03-08 number 3404
  17. South Africa Government Gazette dated 1976-02-20 number 4988
  18. South Africa Government Gazette dated 1976-02-27 number 4991
  19. South Africa Government Gazette dated 1976-03-05 number 4995
  20. South Africa Government Gazette dated 1976-03-12 number 5002
  21. South Africa Government Gazette dated 1979-06-15 number 6506
  22. South Africa Government Gazette dated 1993-10-06 number 15160
  23. South Africa Government Gazette dated 1996-02-02 number 16943
  24. South Africa Government Gazette dated 1997-08-08 number 18166
  25. South Africa Government Gazette dated 1998-06-12 number 18952
  26. South Africa Government Gazette dated 2008-03-14 number 30871
  27. South Africa Government Gazette dated 2010-12-02 number 33829
  28. South Africa Government Gazette dated 2016-03-09 number 39793
  29. South Africa Government Gazette dated 2021-05-04 number 44529
  30. South Africa Government Gazette dated 2021-05-11 number 44557
Judgment 11
  1. Drummond v Drummond (to be G D v S D) (261/77) [1978] ZASCA 123 (29 September 1978)
  2. Du Toit and Another v Minister of Welfare and Population Development and Others [2002] ZACC 20 (10 September 2002)
  3. Ex parte: Le Grange and Another; Le Grange v Le Grange (984/2011) [2013] ZAECGHC 75 (1 August 2013)
  4. Fortune v Fortune (261/54) [1955] ZASCA 33 (26 May 1955)
  5. Fourie and Another v Minister of Home Affairs and Another [2003] ZACC 11 (31 July 2003)
  6. Harper v Absa Trust Ltd NO and Others (15794/2022) [2023] ZAWCHC 145 (14 September 2023)
  7. Holomisa v Holomisa and Another [2018] ZACC 40 (23 October 2018)
  8. M S v M B (2017/30005) [2023] ZAGPJHC 546 (23 May 2023)
  9. S T v C T (1224 of 2016) [2018] ZASCA 73 (30 May 2018)
  10. Santali Versekeringsmaatskappy Beperk v Roux (145/77) [1978] ZASCA 29 (28 Maart 1978)
  11. South African Mutual Fire and General Insurance Company Limited v Bali (199/69) [1970] ZASCA 14 (19 March 1970)
Legislation 4
  1. Children's Act, 2005
  2. Divorce Act, 1979
  3. Matrimonial Property Act, 1984
  4. Mining Titles Registration Act, 1967