Victory as Muslim marriages are now recognised in South Africa

27 July 2022 2203
In 2014, the Women’s Legal Centre Trust (“WLCT”) brought an Application to the Western Cape High Court in which they prayed that the court order the President, Cabinet and Parliament to bring into operation legislation that would recognise and regulate Muslim marriages in South Africa within 12 months, alternatively to declare the Marriage Act, Divorce Act and the Recognition of Customary Marriages Act inconsistent with the Constitution for failing to recognise the validity of Muslim marriages. The state parties opposed the said application; however, the court ordered in favour of the WLCT. The state appealed the said judgement; however, the SCA also ruled in favour of the WLCT. 

The final victory was achieved recently on the 28th of June 2022 when the highest court, the Constitutional Court, confirmed the SCA’s order of constitutional invalidity in that the Marriage Act as well as the Divorce Act are declared to be inconsistent with the Constitution in that they fail to recognise marriages solemnised in accordance with Sharia law if they have not been registered as civil marriages.  

The court highlights the fact that women in Muslim marriages firstly do not have the power to negotiate and decide the terms of their marriage at its inception as women who got married civilly could do. The further differentiation between women in Muslim marriages and women in civil marriages is that the latter women enjoy the right to access a court upon the dissolution of such a marriage and be granted a hearing. 

The Divorce Act further offers women in civil marriages the regulation of dividing assets and also makes provision for maintenance of parties.  The above mentioned are all rights and protection women in Muslim marriages do not enjoy, which gives effect to the fact that men in Muslim marriages normally acquire the assets obtained during the subsistence of the marriage and without any obligation to maintain the women, leaving the women “out in the cold”.

The failure to recognise Muslim marriages also discriminates against children born from Muslim marriages in that they are not included in the Divorce Act which safeguards the interests of the minor children during a divorce and therefore does not take into account the children’s best interest as per section 28 of the Constitution.  

The Court therefore confirmed that the provisions of the Marriage Act and Divorce Act unfairly infringes the rights to dignity, access to courts and the principle of the best interests of the child. 

The President and Cabinet, together with Parliament, are in accordance with the Constitutional Court Order, directed to render the law constitutionally compliant and remedy the defects within 24 months. Among other things, the order also stated that pending the latter, all marriages subsisting as at 15 December 2014 or which had been terminated in terms of Sharia law as at 15 December 2014 but not yet finalised on date of this order, may be dissolved in accordance with the Divorce Act. All Muslim marriages shall be considered to be out of community of property except where there are agreements to the contrary, the provisions of section 7(3) of Divorce Act shall apply to such a union regardless of when it was concluded and where there is a polygamous 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 be joined in the proceedings.

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