Mohamed Raees Hussain | Attorney : Legal Services Division
Recognition of Muslim Marriages: Constitutional invalidity of certain sections of the Marriage Act 25 of 1961, the Divorce Act 70 of 1979, and the Common Law definition of Marriage, confirmed by the Country’s Highest Court.
Prior to a Supreme Court of Appeal judgement in 2020, Muslim marriages in South Africa were not recognized, regulated, or afforded protection in terms of legislation.
In order for a Muslim marriage to be regulated, it was necessary that a separate civil ceremony be concluded either in terms of the Marriage Act 25 of 1961 (the Marriage Act), or in terms of the Civil Union Act 17 of 2006 (the Civil Union Act). If this further civil ceremony was not concluded, then the marriage would be subject to the normal proprietary consequences of an unmarried person. Further to this, a divorce order was not required to finalize the dissolution of the marriage.
The Supreme Court of Appeal (SCA), in the 2020 judgment of President of the RSA and Another v Women’s Legal Centre Trust and Others; Minister of Justice and Constitutional Development v Faro and Others; and Minister of Justice and Constitutional Development v Esau and Others (case no. 612/19)  ZASCA 177, set a precedent for Muslim marriages for South African jurisprudence and made a declaration that the Marriage Act and the Divorce Act were inconsistent with the Constitution and required legislative reform.
Summary of the SCA decision:
The SCA held that the Marriages Act was inconsistent with sections 9, 10, 28, and 34 of the Constitution for its failure to recognise and solemnise marriages in accordance with Sharia law and to regulate the consequences of such recognition.
The court also found section 6 of the Divorce Act to be inconsistent with the Constitution in that it fails to safeguard the welfare of minor or dependent children born of Muslim marriages upon the dissolution of those marriages.
Further to this, section 7(3) of the Divorce Act was declared unconstitutional for its failure to provide for the redistribution of assets at the dissolution of a Muslim marriage. In the same context, section 9(1) of the Divorce Act fails to make provision for forfeiture of patrimonial benefits in a Muslim marriage.
It was held that the common law definition of marriage was inconsistent and thus invalid insofar as it excludes Muslim marriages.
The above declarations of constitutional invalidity were referred to the Constitutional Court for confirmation, in terms of which the Constitutional Court made the following Order:
- The Supreme Court of Appeal’s order of constitutional invalidity is confirmed:
- If the Muslim Marriage was dissolved in accordance with Shariah law, at any time prior to 15 December 2014, then the parties to the already terminated Muslim Marriage will not be entitled to any relief in terms of the provisions of the Divorce Act.
2. After 15 December 2014:
- If a Muslim Marriage subsists as at 15 December 2014, and is thereafter dissolved according to Shariah law, or in accordance with the Divorce Act. In this case, the parties to the Muslim Marriage may seek appropriate relief by invoking the provisions of the Divorce Act, including a just and equitable division of assets, maintenance for a spouse and minor children, custody, guardianship of, or access to a child and forfeiture of patrimonial benefits of the marriage.
- Where a Muslim Marriage, which had already been terminated in terms of Shariah law as at 15 December 2014, and such legal proceedings have not been finally determined as at the date of the Court Order (28 June 2022). In this instance, the parties may invoke all the provisions of the Divorce Act to obtain appropriate relief.
What does this mean for Muslim Marriages in South Africa?
Pending the enactment of new legislation or the amendment of current legislation to regulate Muslim marriages, the provisions of the Divorce Act shall apply to all marriages concluded in terms of Shariah law from 15 December 2014 as if they are out of community of property.
In terms of this Judgement, the Government has been afforded 24 months to address the regulation of Muslim marriages and although significant strides have been made in the recognition of Muslim marriages, it is yet to be seen how the Government deals with its regulation, i.e., either through the amendment of current legislation or the enactment of new legislation.
For further details or advice in this regard, it is best that you speak to a Legal Practitioner (Attorney)