Social Tenure Based on Intimacy – Avoiding Family
Disasters: South African Marital Contracts as an Innovative Pro-Poor Land Tool
LESLIE DOWNIE and JENNY WHITTAL, South Africa
1)
This paper was presented at the FIG Working Week in Christchurch, New
Zealand. One innovative land tool within The Social Tenure Domain Mode
that can function in a pro-poor way and that has not previously been
explored is the use of marital and cohabitation agreements to secure
tenure.
SUMMARY
The Social Tenure Domain Model currently being developed by the
Global Land Tool Network emphasizes the need to find innovative land
tools that can function in a pro-poor way. One such tool that has
not previously been explored is the use of marital and cohabitation
agreements to secure tenure. Private agreements can go beyond a legal
arrangement between spouses to record and entrench diversified forms of
land rights that protect third parties. It is possible to use such
agreements to secure housing rights for the entire household, to agree
succession of land, and to agree to alternative conflict resolution
procedures. Such agreements can take cognizance of both formal and
informal strategies used by the poor to secure tenure, rather than being
narrowly focussed on formal regularisation processes alone. It is
possible to develop a model pro-poor prenuptial agreement under South
African law that complies with constitutional principles, for use by
couples in State subsidized housing. A similar construct could be
replicated elsewhere in the region. Public trust in land administration
systems is likely to be enhanced by the use of such privately determined
records of rights, although legal aid remains a necessity for their
implementation. Formal marital agreements are recorded in formal
registries, meaning they are able to interface with land ownership
records and are accessible to citizens as a public document. They
can reduce fraud and eviction arising from dysfunctional family
relationships and are fit for the purpose of recording family ties
pre-conflict, in a manner that can assist with the management of family
conflicts over land and housing after they arise.
1. INTRODUCTION
It is often stated that in Africa the traditional normative view is
to see people as belonging to land, rather than land belonging to
people. Nevertheless, the perception of people belonging to land
is predicated on people seeing themselves as either belonging – or not
belonging – to each other. As Heaton (2007:14-15) notes, in the
context of her South African research: “Family groups share the
following features: they are intimate and interdependent; they are
relatively stable over time; and they are set off from other groups by
boundaries related to the family group, such that one family is separate
from another in a variety of ways”. Like physical land boundaries,
relational boundaries are vulnerable to being redrawn arbitrarily by
family members. For the poor this is a particular hazard if their
access to land depends on unrecorded family ties.
UN-Habitat (2011:5) defines tenure as based on “relationships between
people and land directly, and between individuals and groups of people
in their dealings with land”. This makes the legal consequences of
personal relationships a significant sphere to examine with a view to
creating innovative land tools capable of securing different rights and
interests in land. Recording family-based rights can be critical
to the future of vulnerable individuals. This is so both in times
of peace, and in times of disaster, when individuals are separated from
relatives with a legal duty of support, who may be able to help them in
the future.
Contracts agreeing the matrimonial property consequences of an
intimate relationship incorporate important data relevant to the land
information system. They have considerable potential not only as a
family law construct, but also as a land tool. In South Africa
formal prenuptial agreements are legally the most developed form of
cohabitation agreements. They are recorded in a public registry,
meaning they are able to interface with land ownership records and are
accessible to citizens as a public document. They can reduce fraud
and eviction arising from dysfunctional family ties and are fit for the
purpose of recording family relationships pre-conflict, in a manner that
can assist with the management of family disputes post-conflict.
2 PRO-POOR PRENUPTIAL AGREEMENTS AS AN INNOVATIVE LAND TOOL
Couples can use prenuptial and cohabitation agreements to record the
terms of their commitment to each other and their dependents. This
limits the harm of a possible personal disaster caused by the breaking
of these promises by one or both of the parties. Such agreements
are not a tactic currently used by poor couples (as individuals) to
strengthen their rights, although lobola agreements (between families)
are still common in Africa, sometimes used in addition to a prenuptial
agreement. Nevertheless, marital and cohabitation agreements have
many attributes that lend themselves to their use as a pro-poor
innovative land tool to protect family and household tenure. The
question “who is your family” can also be phrased: “Who are you
family to?” How members of a couple answer this question is
central to the formation of the intention to commit to a relationship
that will be, as Heaton phrases it, “stable over time.” This is
relevant not only for the rights of the couple inter se, but for the
rights of their dependents as well.
Existing legal measures used to secure land and housing rights are
often either inadequate, or the poor are not able to access the justice
system that enforces the necessary protection (Holness 2013:129). The
poor are therefore often required to use their own informal initiatives
to protect themselves if faced with eviction by family or the refusal by
relatives to fulfil the duty of support. The commitment of
intimate partners to satisfy the need for maintenance and housing
support for each other and their dependents is therefore an important
area worthy of record. This is so even if at the time of recording
the partners are not able to meet those needs. In times of
personal (or national) disaster such records can serve as the foundation
for future stability for individuals, based on the private duty of
support owed to them by their family circle, as opposed to State
support.
As Laufer-Ukeles (2015:283) explains in her research on the needs of
children and caregivers: “Relational rights do not protect two
individuals together. Rather, the rights attach to the
individuals, but the duty to the individual comes in the form of support
for the relationship”. Marital and cohabitation agreements constitute a
legal record confirming the nature of support due in such relationships.
One of the most important sets of rights and obligations affected by
such agreements are those that relate to land. Their nature as a
tool to record and determine land rights, and not just relationship
rights, is highly relevant to initiatives such as those being developed
by the Global Land Tool Network under the auspices of UN-Habitat (Van
Asperen 2014; Saers et al 2015).
3 PRENUPTIAL AGREEMENTS AND THE SOCIAL TENURE DOMAIN MODEL
Existing land information system approaches often assume that the
most important information that needs to be recorded is people’s
relationship to land, with people’s relationship to each other being
secondary. It may be that knowing which people belong to what land
is of secondary importance. The primary need may actually be to
record in a public database the intricate web of relationships that bind
people and their dependents to each other. If land tenure (based
on family support rights) cannot be secured against the family, it is
unlikely to be secure against the world at large. Similarly, an
absence of records that can be used to prove such legal duties of
support can result in a loss of private (as opposed to public) support
for vulnerable individuals.
Intimate relationships are a major means by which enduring social
bonds are brought into being. Families or household groups are
amongst the first building blocks of society and these blocks need a
firm legal cornerstone. If not, in times of disaster they may be
crushed by the weight of title-holders who see land ownership as vesting
the right to unfettered discretion, free from relational obligations.
Many areas in Africa function according to the ownership paradigm, with
land title registered in a public database. In this context the
creation of a tenure right that is capable of being secured as a real
right over land, but has as its cause relational rights, is a clear
need. The tenure debate must be taken into the private realm of
household power imbalances that occur in the lives of the poor.
Such imbalances are exacerbated by the absence of a direct charge
against land that protects vulnerable household members. A direct
charge against land need not merely be dreamt of as a desired future
statutory right. It can be achieved in the present, by means of
the agreements that record relational rights, namely those private
prenuptial and cohabitation agreements that are capable of registration
in a Deeds Registry.
4 PRO-POOR PRENUPTIAL AGREEMENTS IN THE SOUTH AFRICAN SUBSIDIZED
HOUSING CONTEXT
4.1 BENEFICIARIES OF SOUTH AFRICAN SUBSIDIZED HOUSING
It is estimated that by 2050 70% of the world population will live in
cities, with the housing challenges immense (Augustinus 2010:4). State
subsidized housing in South Africa aims to address the poor’s housing
challenges in the local context. South Africa has made phenomenal
strides with the provision of millions of subsidized houses in recent
years. Accordingly these households are ideal for testing
prenuptial agreements as a pro-poor tool to protect marginalized
household members’ right to access housing that is controlled by their
intimate circle. Subsidized housing ownership is in the unique
position of having been awarded largely through State grants. This
means that if legal aid is provided for cohabitation agreements, it can
be prescriptive about fair terms with regard to the subsidized property.
The public mores would clearly require that the tenure security of
vulnerable household members not be undermined.
Individuals must pass a means test confirming poverty to acquire a
fully funded subsidized house. The means threshold for the
individual housing subsidy in South Africa is currently a combined gross
household income of less than R3 500 per month (Western Cape Department
of Human Settlements 2015). This converts to just under £177 per
month.[1] The South African National Housing
Code definition of dependents is significantly different to the
definition of legal dependents (National Housing Code 2009:13). The
Code’s definition is pro-poor, being based not only on degrees of family
consanguinity and marriage, but also on need in the form of “financial
dependence”.[2] The dependents of housing
applicants are therefore not necessarily construed according to the
narrow legal definition of dependency. They include those
relatives and partners in need that the applicants have committed
themselves to support.[3] The paperwork
recording these relationships can accordingly be seen as recording a
form of social tenure that may, or may not, correlate with legal
categories. This makes South African subsidized housing highly
relevant to social tenure land information models that wish to bridge
the formal-informal divide.
4.2 SOUTH AFRICAN MATRIMONIAL PROPERTY LAW
The default matrimonial system for all South African marriages is
that of community of property and profit and loss. Monogamous marriage
without a prenuptial contract results in the ownership of an undivided
half share in land (and any buildings on the land) owned by the other
spouse. Ownership rights vest on date of marriage, before
registration of transfer at the Deeds Office. This means that the
consequences of formalization of land rights and formalization of
relationship status hang together. Marriage formalisation is a
free procedure.[4] It is therefore also a
free way to dispose of the right to land ownership in a legally
enforceable manner. This makes it highly relevant to the poor.
All the marriage statutes make provision for couples to exclude this
default system with a prenuptial agreement. A default accrual
prenuptial contract is provided for by statute, for couples that choose
to exclude community of property. While this is the most common
prenuptial form, couples are free to contract out of it, or to adjust
it. A prenuptial contract is however not a free process. A
“cheap” prenuptial agreement currently costs about R950 (Law2ticks:
2015). In other words this is just under a third of the household
monthly income required to pass the subsidized housing application means
test.
All marriages give rise to a reciprocal duty of spousal support, pro
rata according to each spouse’s means, irrespective of whether a couple
is married in community of property or by prenuptial agreement.
There are also duties of support that arise separately from marriage,
particularly towards children and parents, with South African family law
giving needy dependents rights to claim from relatives.
Nevertheless, as noted in the Volks NO v Robinson constitutional court
case: “Unfortunately the reality is that maintenance claims in a
poverty situation are unlikely to alleviate vulnerability in any
meaningful way” (2005:para 66). Duties of support arise ex lege and
cannot be removed by prenuptial contract, although prenuptial contracts
can strengthen the practical ability to enforce these rights and duties.
This can be achieved by the manner in which rights to spousal assets are
determined.
A study of the law relating to prenuptial agreements can give an
indicator of the capacity of agreements between couples to secure land
tenure for the poor.[5] Marital agreements
are not usually regarded as a land tenure tool, despite the fact that
(like title deeds) they are public documents registered at the Deeds
Office. Significantly they are currently the only type of
cohabitation agreement capable of including a succession agreement under
South African law. Prenuptial agreements are conventionally used
as a tool to protect the property of spouses against claims by third
parties and to exclude assets from the default matrimonial property
system. They can however also include terms for the benefit of
third parties, which can include the couple’s dependents. These
qualities make them highly pertinent to land tenure.
South Africa recognizes customary marriages (Recognition of Customary
Marriages Act 1998), civil unions (Civil Union Act 2006) and civil
marriages (Marriage Act 1961 and Civil Union Act 2006). All of the
family arrangements under these Acts are able to use prenuptial
agreements (cf Matrimonial Property Act 1984). Prenuptial
agreements manage the outcome of death, divorce and loss of property to
debtors. They can accordingly be structured according to a
couple’s own normative views, rather than a top-down imposition of a
matrimonial property system over which they have no say. Many
couples holding a hybrid system of personal marital norms marry under
the civil system. Marital contracts can be structured in a manner
that they respect civil, customary, and religious or hybrid norms.
This means they are able to address very real social issues underlying
the marginalization of dependents, across a range of normative views.
4.3 THE SUBSIDIZED HOUSING OWNERSHIP CONSTRUCT
In South Africa urban State-subsidized housing is transferred to poor
beneficiaries by registration of individual ownership or co-ownership at
the Deeds Registry, making the title deeds public documents. This
individual titling process results in title deeds in the name of an
adult individual or a co-owning couple. The intention of this titling
approach was no doubt to confer the high level of protection offered by
a real right. The ownership approach has, however, had some drawbacks.
Dependents (as opposed to the caregiving title-holder) do not acquire a
real right over the land. This leaves them in the precarious
position of only having a claim for support from those caregivers who
are under such an obligation.
A direct claim to land must be distinguished from the duty of
support, which is a general duty, although it does include the duty to
provide shelter. The duty to provide shelter is not constituted
under South African law as a direct charge against land. In those
cases where the duty of support towards a spouse or dependent is not
fulfilled, it can be enforced by litigation through the courts.
However, an owner is free to sell their house and spend the proceeds,
unless there is a prior court order prohibiting this. Dependents
are then without redress if this is the person upon whom they depend,
and that person is without the means to meet a claim for support by the
time the claim is made.[6]
The housing tenure security of dependents in subsidized housing
households is prejudiced by the absence of some form of group
registration that includes real rights for the dependent members of the
household. The individual titling system can at times undermine
the State’s original intention to provide housing protection for the
main beneficiary and all dependents, not for a single beneficiary or the
couple alone. From the State’s perspective how best to achieve
broad protection of dependents is complex, not least in view of
differing beliefs. Some may believe that land tenure is best
secured by means of private individual (or co-) ownership. Others
may see tenure as a group’s right to the use of the land, buttressed by
the right to limit the disposal of land in a manner that threatens such
rights. Prenuptial agreements offer a route for households to
privately commit to a particular normative approach. Both an
individual and a communitarian normative worldview can be entrenched by
private contract, by using the particular legal strategies necessary to
give them force.
The poor’s broader lack of access to legal education, advice and
remedies is widely recognized. Housing beneficiary couples are
often not able to register transfer of a half or whole share of their
subsidized property if their relationship breaks down.[7]
Intervening transfers due to deceased succession are often not
registered due to the high cost of registration and other social
factors, such that the number of land disputes grows exponentially.
The conveyancing cost for subsequent transfers of previously subsidized
houses is beyond the reach of most poor titleholders. As Holness
(2013:129) notes, it is apparent that “access to a lawyer in civil
matters is for well-off South Africans only”. As a result informal
practices have developed by way of a response in respect of the sale,
inheritance and donation of land. This sometimes results in a loss
of housing for the original beneficiaries and their dependents. The use
of informal tenure practices varies with South African State-subsidized
houses, but was noted by Barry and Roux as pervasive in some areas
(Barry & Roux 2015; Roux 2013:220-230). Some of these practices reflect
Ubuntu values deserving legal protection, but function less than
optimally because of their informality.
It has for some time been recognized in South Africa that there is a
need for diversification or fragmentation of land rights to ensure
protection of broader rights and interests (Badenhorst et al 2003:5).
The need to protect overlapping use rights is recognized in various
statutes promulgated after the advent of the democratic era in 1994, but
these statutes are conventionally invoked with disputes against the
State or outsiders, not against household members or relatives.
[8] Badenhorst et al (2003:11) point out that
the property clause in the South African Constitution should not be
interpreted as a guarantee “to insulate the status quo and existing
position of the individual property holder against any interference,”
but rather as a guarantee “to establish and maintain a balance between
the individual’s existing position and the public interest”. The first
group affected by an “individual’s existing position” are those people
who share housing with the individual. Dependents are by
definition more vulnerable than those upon whom they depend, due to age,
youth, misfortune or illness. A needy dependents’ interest in the
use of specific land controlled by another household member is therefore
the interest par excellence that must be protected against arbitrary
deprivation. In the absence of a statutory provision protecting
dependents’ direct rights to land, prenuptial agreements can achieve the
same result through the incorporation of a housing servitude, as
discussed below.
5 PRENUPTIAL AGREEMENT TERMS TO SECURE LAND TENURE
An overview of prevailing international approaches to marital
agreements can be found in Marital Agreements and Private Autonomy in
Comparative Perspective (Scherpe 2012) that draws a comparison between
fifteen different countries. The use of prenuptial agreements is shown
still not to be the norm, with the default system of the country much
more important. The countries chosen for the book are all in the first
world, meaning the book speaks into a more affluent environment.
Scherpe sees the Netherlands as particularly relevant, due to it being
the only country in Europe with the default community of property
regime. The default system in South Africa is also that of community of
property and of profit and loss. Countries that include the same default
system outside of the first world include Botswana, Namibia, Zimbabwe,
Lesotho and Swaziland. If the Netherlands is deemed to have become
a relevant country to research on marriage contracts due to its default
community of property system, this makes South Africa equally relevant,
particularly in Southern Africa and the developing world.
The reasons given for the use of a prenuptial agreement in the
closing chapter of Marital Agreements reflect the typical conventional
understanding of its function, namely: The desire to insure against the
risk of marital breakdown; to “ring-fence” property owned before
marriage; protecting a fair share of property for children from a
previous marriage; tax efficiency; protecting a spouse from creditors;
and protecting “of course, generally speaking one’s own financial
advantage” (Scherpe 2012:445-446). This being the case, it is
unsurprising that it is difficult to find any reference to research on
marital agreements being used for pro-poor purposes, or on such
contract’s use primarily as a means to benefit dependent third parties.
Prenuptial agreement templates can be structured as an innovative
land tool predicated on the protection of rights according to need.
A pro-poor prenuptial agreement must proceed primarily from the need to
protect the housing interests of all members of a household, not the
conventional approach of protecting spousal interests alone. This
is not the same as taking the conventional route of creating a group
right that can function as a single entity. Rather, it requires a
synthesis of various legal mechanisms to create a new form of tenure
that reflects a diversification of existing constructs able to protect
the vulnerable while respecting the norms of couples with diverse
worldviews.
In the South African subsidized housing context, housing tenure can
be secured by means of a personal usus servitude, registered as a real
right limiting the ownership of dependents’ caregivers.[9]
Using such servitudes in the context of poverty is an innovation, as
they are currently used only rarely, and even then usually by affluent
testators to benefit their family members. Such housing rights
cannot endure beyond the lifetime of the person who benefits from the
right. As a real right burdening the land they are a very secure
right. A housing right entrenched by registration of a servitude
is not tradable and is therefore secured by de-commodification. This
does not preclude sales and transfers of ownership, recognizing that
families must retain their freedom of mobility. It merely limits
the ease with which they can occur, since ownership must be transferred
subject to the servitude, until the agreed term of its duration has
expired. Terms allowing for substitution of a new property subject to
the housing servitude can be included in a prenuptial agreement, to
allow for greater flexibility. The registration of housing use rights
mirrors other legal attempts to secure the tenure of occupants against
eviction in both rural and urban areas. Interestingly, in Wormald NO v
Kambule (2005:para25(d)) the right of a customary wife to reside
in a home was construed as being a “type of customary law personal
servitude of usus or habitatio”.
A prenuptial agreement can protect housing rights of aging spouses by
agreeing to an usus servitude, as well as protect their capacity to
secure tenure for their vulnerable descendants when they pass away, by
means of a succession agreement. Succession terms can follow the
simple route of determining heirs or co-heirs, alternately a trust can
be constituted on the death of the landowner, with the trust serving as
a vehicle for group rights. Since prenuptial agreements in South
Africa are lodged at the Deeds Registry, such succession arrangements
have the added value of being a public document. Couples can agree
rights to future ownership, even if on date of marriage they do not yet
own land, as is often the case with housing applicants. In other
words a prenuptial agreement can focus on solutions and opportunities
that might arise in the long term and need not be predicated on present
assets.
6 PRENUPTIAL AGREEMENT TERMS TO RESOLVE CONFLICT
Relationship conflicts can be addressed in one of three ways:
either by informal resolution; by expensive litigation after the fact;
or proactively by contractual agreements. Marital agreements can
clarify the intentions of parties up front to avoid future disputes and
provide for affordable and accessible mediation and arbitration, should
a dispute be unavoidable. Many conflicts in poor households begin
when the relationship of an intimately involved couple breaks down.
Informal remedies to cure land conflicts can then be triggered by an
absence of records, or a vacuum of accessible legal solutions. A
formal agreement confirming rights and duties would considerably ease
this situation, both for government officials and for households.
For those countries where resolving conflicts becomes the responsibility
of the normal court system, the impact on the State of a couple’s
failure to clarify their interpersonal obligations is immense. The
legal aid required to address these conflicts retrospectively is far too
sophisticated and expensive for the State to achieve at scale.
This paper is confined to prenuptial agreements between couples, but
a few comments about additional customary approaches follow.
Lobola agreements can be entered into in addition to a prenuptial
agreement in South Africa, irrespective of whether a couple chooses to
marry under a civil or customary marriage statute (Mofokeng 2009:117).
The Recognition of Customary Marriages Act (1998:s3(b)) refers to
marriage as something that is “negotiated”. This reflects the customary
understanding of marriage, which Claassens & Smythe (2013:8) describe as
being entered into by means of a “flexible range of consensual
arrangements that had previously been negotiated within and between
families”. Intrinsic to this is the recognition that agreements reached
before marriage can anticipate future conflicts, including conflicts
with third parties, particularly family conflicts over inheritance.
Customary lobola arrangements are negotiated between families, while the
rights entrenched in prenuptial agreements are usually negotiated
between the spouses alone, although the terms agreed can benefit third
parties. Couples can enter into either a prenuptial agreement or
lobola agreement alone, or enter into both concurrently.
Prenuptial contracts (as provided for by the common law and by statute)
can potentially offer the same “flexible range of consensual
arrangements”. Unlike prenuptial agreements, lobola agreements are
not registered at the Deeds Registry, although it would be possible to
choose to draft them as notarial deeds and register them. This
would make them easily accessible (as public documents) to those
entitled to benefit from the lobola arrangements. Alternately, it
would be possible for a registered prenuptial agreement to include third
party benefits that support less formal lobola arrangements.
Prenuptial agreements can be used to manage tenure insecurity arising
from the loss of housing through eviction, the death of an owner, family
disputes, or conflicts arising from unresolved differences in
worldviews. They can be structured to ensure that diverse beliefs
are respected, particularly African normative views that are in a state
of flux and not easily expressed in either the civil or the customary
frame. In the South African urban subsidized housing context
(which is based in private ownership) a wide range of perspectives could
be entrenched, provided the landowners are willing to sacrifice their
individual personal rights in the interest of securing broader
relational rights, and legal is aid available. Couples with nuclear
family commitments could freely protect individual rights narrowly
within the nuclear group. Couples with communitarian commitments could
freely contract to protect the community of their choice in a mutual
way, rather than protecting individual rights. Couples with
custodian views of family land could freely limit their estate in a
manner that ensures the land is, indeed, held for the benefit of the
family group, not for the benefit of individuals alone. Any South
African is free to enter into such arrangements for urban land (and some
rural land) provided they are able to afford the prenuptial contract
A prenuptial agreement accordingly offers couples the opportunity to
be the change they wish to see in the world. Provided the terms
are not against the law or contrary to constitutional mores, a couple
can freely determine the rights that will follow at the time of
marriage, in times of conflict, and upon their death. Provided
necessary checks and balances are in place, such contracts could
therefore serve as the vehicle for socially embedded norms to be
privately embedded in the legal frame (across a flexible range of
possibilities). This would result in a public document able to
enforce normative structures from the bottom up. Public trust in
land administration systems is likely to be enhanced if State records
could include privately delineated rights. If appropriated by the
poor, such agreements could be a key source of validation and
acquisition of third party data.
7 FORMALITY, INFORMALITY AND REGULARISATION
Those who work with the urban poor soon recognise that informal
systems are often used to secure tenure, rather than formal systems.
Common examples in the South African context include: the use of
the original title deed document itself as proof of the land being
traded (rather than a formal sale agreement and transfer of ownership
being registered); the pledging of credit cards and identity documents
as security for debts; proof of rates payment being seen as proof of
entitlement to occupy; family evictions following alternative channels
to legally established rules; or a letter of authority to act for an
estate being used as proof of land ownership without formal transfer.
The poor often informally adjust formal processes to secure tenure.
If tenure is to be secured at grassroots, a pro-poor prenuptial
agreement must first and foremost be able to be applied and recognized
within this informal context.
Access to formal justice cannot be the bar a prenuptial agreement
must reach before any enforcement is possible. A pro-poor
prenuptial agreement must be predicated on current tenure approaches
that regard informal practices as equally relevant for the poor’s tenure
security as the formal law. Prenuptial agreements for the poor
should therefore primarily aim at securing tenure, not necessarily
regularizing tenure, although this could result. As such, template
contracts should attempt to stand in the gap between both the formal
legal context and the informal social context. Processes developed
would need to be informally appropriated in a participatory way, with
communities moving forward the discussion about when and how dependents
rights should be secured within a household.
The legal rules of private contract can diverge from the typical
private ownership paradigm and show themselves fit for the purpose of
regularising existing informal arrangements. Identifying whether a
woman is a wife or a mistress, or in a polygynous marriage, or involved
only in a casual sexual encounter, is a very tense issue. The
effect this has on all the dependents of the couple involved must become
part of the urban housing tenure debate. Housing terms can be agreed
within households (that know and understand their own private affairs
intimately) provided the terms do not run counter to legal support
requirements and public policy, as marriage is a public status.
Regularization by means of formal registered prenuptial agreements
may prove to be idealistic, or only something that can be achieved
incrementally over a long period. The first manifestation of the
informal success of the pro-poor prenuptial concept might be the
spontaneous emergence of simple affidavits speaking into the acceptance
of obligations. If they followed the pattern of informal sales,
such affidavits would only partially record a much wider agreement, with
the bulk of it remaining a verbal arrangement. Community
recognition of the contents of both the written and the verbal
components would evolve in its own way. The widespread use of
formal prenuptial agreements reflecting constitutional principles is a
long-term hope. Normative education regarding the use of formal
contracts can be used strategically to act as the catalyst for more
structured informal processes of household rights determination,
incrementally securing tenure in this way.
As Nedelsky (1993:355; 2011) points out, the State should foster
conditions where people (as family members, friends, members of a
community and citizens) can “form caring, responsible and intimate
relationships with each other”. Cohabitation and marital agreements can
be used to secure overlapping land rights that the ownership paradigm
does not currently protect.[10] At present in
South Africa there is no legal aid for cohabitation and prenuptial
contracts. Even if a prenuptial contract can be afforded,
contracts that differ from the statutory accrual contract are not
available in standard form. There is no existing template that can
be used to enhance the capacity of marriage as a protective legal
structure for the poor. In South Africa prenuptial agreements
currently represent the only private relational contract with the full
spread of legal mechanisms necessary to achieve total housing security
between a household inter se. This is due to their privileged
position of being the only contract in which an irrevocable succession
agreement is possible. As such they need to be brought into the
debate of what fields of law should benefit from legal aid for the poor.
The norms of good governance may require of the State to facilitate
assistance in this regard, recognizing the far-reaching consequences of
failures of clarification, both for individuals and the State.
8 CONCLUSION
The poor often handle the tenure conflicts that arise between kinship
and household groups by informally agreeing what is, in essence, a
private contract. The joyous event of matrimony (or the decision to
commit to a stable, long term relationship) is an opportune time for
couples to contract in advance to fetter discretion over land tenure.
Agreements such as these are best reached before either blessings or
sufferings have the power to bring about changes of heart. It is
in the interest of the couple (and their current and future dependents)
that oral promises made at this time of goodwill are recorded.
Prenuptial contracts that determine rights to South African
State-subsidized housing are capable of being drafted in a manner that
could serve as an innovative pro-poor land tool securing housing tenure.
The poor are in need of legal contractual support to manage their
exposure to relational risk and its impact on housing and land tenure.
Prenuptial provisions can establish entry-level rules of law capable of
practical, free and private use, as well as holding the benefit of being
capable of formal registration. They may therefore be a bridge
between the broader social contracts already being entrenched (through
the formal and informal justice systems respectively) and the formal
legal system. Legal template contracts customised to meet the
requirements of the poor need to be made available. The benefits
of their use in the context of a social tenure domain model should be
explored, as well as the need for State legal aid in this regard.
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BIOGRAPHIES
LESLIE DOWNIE BA Hons (English) LLB MPhil
Leslie is currently a private consultant. She previously taught
social law, law of persons and family law at the University of South
Africa and business law at the University of Cape Town. She was
for many years an attorney, notary and conveyancer, before specializing
in urban land issues and poverty and consulting to local government and
non-profit organisations. Her publications relevant to this
article are listed below:
A Critical Analysis of the Potential of Pro-Poor Prenuptial
Agreements as a Land Tenure
Tool to Secure Rights in Urban State-Subsidized Housing (2015) MPhil
thesis UCT, Cape Town.
Land Tenure: Mapping Marital Land Rights and Obligations
(2014)
AfricaGEO Conference, 1-3 July 2014, Cape Town (2014)
http://africageoproceedings.org.za/wp-
content/uploads/2014/06/110_Downie.pdf (accessed 10=08-2015).
Informal Business Law series (2012 English and isiXhosa sound
recording, Somerset West, South Africa, Informal Business Law:
How to do a Sale Agreement and How to Use a Lawyer;
Understanding Ownership and How to Reach a Deal;
Understanding Your Title Deed and Who the Real Owner Is.
“Urban Pro-poor Registrations: Complex-Simple the Overstrand
Project” (2011)
vol 14, 119,Potchefstroom Electronic Law Journal.
Contact:
Address: 15 Olijvenhof Estate, Somerset West, Western Cape, South
Africa, 7130.
Tel: 021 851 4065
email:
leslie@downieconsult.co.za
JENNIFER WHITTAL
Jennifer Whittal is an Associate Professor in the Geomatics Division
at the University of Cape Town. She obtained a B.Sc. (Surveying) and a
M.Sc. (Engineering) specializing in global positioning systems from the
University of Cape Town. In 2008, Jenny obtained her Ph.D from the
University of Calgary applying critical realism, systems theory and
mixed methods to a case of fiscal cadastral systems reform. She is a
Professional Land Surveyor and lectures advanced surveying and land law.
Research interests are land tenure and cadastral systems with specific
interest in sustainable development and resilience in land holding for
the poor, historical property holding, and cadastral issues in the
coastal zone.
Contact:
Address: Geomatics:School of Architecture, Planning and Geomatics,
University of Cape Town, Western Cape, South Africa, 7700.
Tel: 021 650 3575
email:
Jennifer.whittal@uct.ac.za
[1] At the exchange rate on 1-08-2015.
[2] “Consanguinity” means people descended from
the same ancestor.
[3] While this does have pro-poor benefits, it
can result in a mismatch between heirs who succeed to title and the
financial dependents of the original household.
[4] The marriage statutes make provision for
charges in some cases, but there are many organizations that would
solemnize marriages for the poor for free.
[5] In the interest of brevity, a separate
discussion of cohabitation agreements cannot be included in this paper.
[6] In addition, dependents in subsidized
housing who are “financial” dependents, but do not fall into the
category of a “legal” dependent, are not currently owed a duty of
support by subsidized housing title deed holders.
[7]The 2015 cost of registering transfer of
ownership of a house valued below R100 000 according to the Law Society
guidelines is R3 950 before the additional costs for rates certificates,
deeds office fees and the like, with the disbursements taking it up to
approximately R5 320 (GhostDigest 2015; Fairbridges Attorneys 2015).
[8] The Extension of Security of Tenure Act 1997
and the Interim Protection of Informal Land Rights Act 1996 are examples
of such Acts.
[9] An usus servitude is likely to be the best
suited to this purpose, although habitatio and usufruct servitudes are
also a possibility.
[10] A “right” is used in the “concrete legal
sense” as “a power, privilege, demand or claim possessed by a particular
person by virtue of law”.[10] In other words a popular legal
definition of “right” is used, as opposed to the broader social tenure
usage whereby a “right” is contextually conceived according to the
perception of the holders and their communities, which could be based on
values, culture, social, custom or legal systems. Group rights are also
used in this concrete sense.
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