Legal change: South Africa recognises Muslim marriages

In the matter of Women’s Legal Centre Trust v President of the Republic of South Africa and Others 2022 (5) SA 323 (CC)), the Constitutional Court found that certain provisions in the Divorce Act 70 of 1979 (“Divorce Act”), as well as the Marriage Act 25 of 1961, were inconsistent with the Constitution. These provisions failed to recognise marriages solemnised in accordance with Sharia law (Muslim marriages) as being valid for all purposes in South Africa.

The non-recognition of Muslim marriages, which have not been registered as civil marriages, was deemed unconstitutional. The Constitutional Court held that, at the time of dissolution of a Muslim marriage, the Divorce Act failed to provide for:
1. Safeguarding the welfare of minor or dependent children born of Muslim marriages;
2. The redistribution of assets (where same would be reasonable); and
3. Forfeiture of the patrimonial benefits.

The Court granted the President, Cabinet and Parliament 24 months from date of judgment to ensure that Muslim marriages are recognised as valid marriages for all purposes in South Africa and to regulate the consequences arising from such recognition.
In July 2023 the Divorce Amendment Bill was introduced. After being approved by the National Council of Provinces in February 2024, President Cyril Ramaphosa signed the bill into law on 6 May 2024.

Some of the amendments effected by the Bill can be briefly summarised as:
1. Inclusion of a definition of a Muslim Marriage (“…a marriage entered into or concluded in accordance with the tenets of Islam”);
2. The interests of minor or dependent children born from a Muslim marriage are now safeguarded and protected; and
3. The option for redistribution of assets or forfeiture of patrimonial benefits are now available at dissolution of a Muslim marriage.

These amendments were long overdue and will bring positive relief for many South African Muslim women and children.

For personalised advice and guidance on how these new legal changes may affect you, visit our Family Law team page.

Disclaimer: This article is the personal opinion/view of the author(s) and is not necessarily that of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever and no action should be taken on the basis thereof unless its application and accuracy have been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken on the basis of this content without further written confirmation by the author(s).

 

May 29, 2024
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