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SA ConCourt recognition of Muslim marriage a victory for women and children’s rights

On 28 June 2022, the Constitutional Court, in Women's Legal Centre Trust v President of the Republic of South Africa and Others, held that the non-recognition of Muslim marriages infringes upon the rights of Muslim women and their children to dignity, equality, access to courts and the best interests of children.

The court confirmed that the Marriage Act, 1961 and the Divorce Act, 1979 are inconsistent with the Constitution because they failed to recognise marriages solemnised in accordance with Sharia law and have not registered these as valid civil marriages. 

The common law definition of marriage was also declared to be inconsistent with the Constitution and invalid because it excluded Muslim marriages. The common law definition of marriage now includes Muslim marriages. Muslim marriages are therefore deemed to be valid and legitimate.

The following sections of the Divorce Act were declared to be unconstitutional:

  • Sections 6 and 7(3), because they failed to provide mechanisms to safeguard the welfare of minor or dependent children born in Muslim marriages and failed to provide for the redistribution of assets on the dissolution of a Muslim marriage when such redistribution would be just.
  • Section 9(1), because it is inconsistent with the Constitution for failing to make provision for the forfeiture of patrimonial benefits of a Muslim marriage at the time of its dissolution, in the same or similar terms as it does in respect of other marriages that are dissolved.

The Constitutional Court suspended the declaration of invalidity for a period of 24 months to enable the legislature to remedy defects by either amending existing legislation or initiating new legislation by 27 June 2024.  The new or amended legislation must recognise Muslim marriages for all purposes in South Africa and to regulate the consequences arising from such recognition.

Pending the coming into force of new legislation or the amendment of existing legislation, the Constitutional Court declared that Muslim marriages subsisting as at 15 December 2014 may be dissolved in accordance with the Divorce Act as follows:

  • All provisions of the Divorce Act would be applicable, save that all Muslim Marriages would be treated as if they are out of community of property, except where there are agreements to the contrary;
  • The provisions of section 7(3) of the Divorce Act (which deals with a redistribution of assets) would apply to Muslim marriages regardless of when the marriage was concluded;
  • In the case of a husband who is a spouse in more than one Muslim marriage, the court shall take into consideration all relevant factors including any contract or agreement between the relevant spouses and must make any equitable order that it deems just and may order that any person, who in the court’s opinion has a sufficient interest in the matter, may be joined in the proceedings.

Now that the Divorce Act applies to Muslim marriages, the minor and dependent children of Muslim marriages will enjoy the same protections as the minor and dependent children in civil marriages.

If a party to a Muslim marriage can prove that they contributed to the growth of the other spouse’s estate, that party can request the court to make a redistribution order, even if the parties are married out of community of property. The Divorce Act allows a court to order the forfeiture of benefits in divorce proceedings. We have a no fault divorce system and the act refers to substantial misconduct being taken into account for forfeiture of benefits.

The Constitutional Court also held that pending the coming into force of new or amended legislation, from 28 June 2022, section 12(2) of the Children’s Act, 2005 applies to a prospective spouse in a Muslim marriage concluded after 28 June 2022 and sections 3(1)(a), 3(3)(a) and 3(3)(b), 3(4)(a) and (b) of the Recognition of Customary Marriages Act, 1998 shall apply, with necessary changes being made, to Muslim marriages.

The court held that if administrative or practical problems arose in the implementation of its 28 June 2022 order, any interested person could approach the court for a variation of the order.

Prior to this case, women in Muslim marriages had to register their marriages in order to have their marriages recognised under South African law. The Supreme Court of Appeal and the Constitutional Court confirmed that the non-recognition of Muslim marriages that were not registered violated the constitutional rights of women in and children born of Muslim marriages.

The court remarked that the non-recognition of Muslim marriages was a source of great hardship. There was no justification offered as to why children born of Muslim marriages should not enjoy the automatic oversight of a court, as set out in the Divorce Act, in relation to their care and maintenance and why they should not be protected by a statutory minimum age for consent to marriage.

The previous non-recognition of Muslim marriages forced some Muslims to dilute their religious beliefs by electing to marry monogamously according to civil law in order for their marriages to be regarded as valid. An additional challenge was that women in Muslim marriages were often unable to convince their husbands to conclude civil marriages.

If a Muslim couple enters into a community of property marriage by concluding a pre-nuptial agreement and if the husband in that marriage marries a second wife under Sharia Law, the first wife, on the husband’s death, will get half of the joint estate by virtue of the in community of property matrimonial regime and a specified share from the other half of the joint estate. The second wife will only receive a specified share in half of the estate because her marriage will be deemed to be an out of community of property marriage.

The Constitutional Court judgment applies to all Muslim marriages entered into after 15 December 2014. Muslim marriages have been brought on par and in line with other civil marriages, but they will be treated as out of community marriages unless the spouses agreed otherwise.

 

Aslam Moosajee

Executive | Dispute Resolution

amoosajee@ENSafrica.com

 

Shenaaz Munga

Senior Associate | Dispute Resolution

smunga@ENSafrica.com