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To what extent are Muslim marriages legally
recognised in South Africa?

Minette Nortjie
September 2018

“I am to be married according to my Islamic religion. Although I understand
the practices of my faith, I’m not sure how my marriage is viewed from a legal
perspective in South Africa and what protection I have. Can you explain how
the law will view my marriage as compared to a normal civil marriage?”
Currently, a marriage concluded in terms of the Islamic faith is not recognised
as a legally valid marriage in South Africa. In our law, a marriage can be
concluded in terms of the Marriages Act 25 of 1961 which is known as a civil
marriage or in terms of the Civil Union Act 17 of 2006 known as a civil union.
Marriages concluded in terms of the Islamic faith do not meet the statutory
requirements as imposed by these Acts. As a result of the fact that a marriage in
terms of Islamic faith is not legally recognised, the consequences and dissolution
of such a marriage is also not regulated by our South African law. The dissolution
of Muslim marriages therefore remains problematic as one of the requirements
for the dissolution of a marriage is that there must be a valid marriage prior
to divorce proceedings being instituted. Accordingly, the dissolution of Muslim
marriages is not regulated by the Divorce Act 70 of 1979.

There are, however, certain areas in South African law where spouses to a
Muslim marriage have been afforded recognition and as a result thereof
have been afforded certain benefits which would usually only be available
to spouses of a legally recognised marriage. A surviving spouse as defined in
the Law of Intestate Succession now includes a spouse in a Muslim marriage
and accordingly, he or she can inherit a portion of the estate of the deceased
spouse. The enforcement mechanisms of the Maintenance Act have also been
extended to polygamous Muslim marriages.

Despite these exceptions, there is no enacted legislation which governs Muslim
marriages. A draft Bill named the Muslim Marriages Bill was introduced in 2010,
but this Bill has not been enacted. As a result of this, a recent decision in the
Western Cape High Court has had a great impact on the recognition of Muslim
marriages in South Africa. In this case, the Women’s Legal Centre brought
an application in terms of which the President and Cabinet, together with
Parliament have been ordered to enact legislation governing Muslim marriages
within twenty-four months of the date of the judgment.
Family Furthermore, it was decided by the court that should this not be realised by
the legislature, the Divorce Act will then also apply to Muslim marriages when
they are dissolved. This would mean that all the factors which are considered
by courts to ensure equality and equity in divorce proceedings as well as the

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