Muslim marriages given full legal recognition
Up until 2022 Muslim marriages were not legally recognised. That changed when the Constitutional Court stepped in.
Despite South Africa's progressive Constitution and emphasis on the rights to equality and religious freedom, marriages concluded under the Islamic faith (“Muslim marriages”) were neither fully recognised, nor regulated by South African law. This meant that even after 28 years of democracy, the women and children party to these marriages unfortunately suffered the consequences of such non-recognition.
However, the light at the end of the tunnel has been reached and after years of litigation, the Constitutional Court in Women's Legal Centre Trust v President of the Republic of South Africa and Others (2022) ZACC 23 finally ruled that Muslim marriages are to be legally recognised and that certain sections of the Divorce Act 70 of 1979 (“Divorce Act”) and Marriage Act 25 of 1961 (“Marriage Act”) are declared unconstitutional.
Throughout the judgment, the Constitutional Court highlighted that the non-recognition of Muslim marriages infringed on various human rights, such as the right to equality, dignity, and access to courts of women in Muslim marriages. The Constitutional Court also noted that the rights of children born from Muslim marriages were similarly infringed.
Background of the case:
> In President of the RSA v Women's Legal Centre Trust; Minister of Justice and Constitutional Development v Faro; and Minister of Justice and Constitutional Development v Esau (Case no 612/19) (2020) ZASCA 177 (18 December 2020), the Supreme Court of Appeal (“SCA”) held as follows:
- The State's failure to take necessary legislative and other measures to recognise and regulate Muslim marriages is a breach of its duty under section 7(2) of the Constitution. This section provides that the state must respect, promote, and fulfil the rights in the Bill of Rights.
- The Marriage Act and the Divorce Act are inconsistent with the Constitution as they fail to fully recognise Muslim marriages and do not regulate the consequences of such marriages. Certain sections of the Divorce Act were held to be inconsistent with the Constitution.
- The common law definition of marriage, which defines marriage as “the legally recognised voluntary union for life of one man and one woman to the exclusion of all others”, is declared to be inconsistent with the Constitution and invalid to the extent that it excludes Muslim marriages. This exclusion of Muslim marriages was partly based on the possible polygamous nature of these marriages, which are not allowed under the common law of South Africa and the Marriage Act.
> The SCA suspended the judgment for 24 months and referred the matter to the Constitutional Court for confirmation.
What the Constitutional Court held:
> The Constitutional Court confirmed the SCA's order of invalidity and further held that the Marriage Act and the Divorce Act are inconsistent with the Constitution as they fail to fully recognise Muslim marriages and do not regulate the consequences of such marriages.
> Certain provisions of the Divorce Act are declared unconstitutional for the following reasons:
- It does not allow a wife to approach a court to claim relief upon divorce by her husband in a Muslim marriage.
- Children born from Muslim marriages do not enjoy the same protection as children born from civil marriages upon divorce. In the case of civil marriages, a court has automatic supervision powers to ensure that the best interests of any minor child born from the marriage are protected. However, the courts are not involved in the dissolution of Muslim marriages and cannot play a supervisory role to ensure that the best interests of a minor child born out of such marriage are protected.
- It fails to provide for the redistribution of matrimonial property on the dissolution of a Muslim marriage, where it would be justified to do so.
> A period of 24 months was given to amend and update existing legislation, or to initiate and pass new legislation that will ensure the recognition and protection of Muslim marriages.
Relief pending new legislation/amendment to existing legislation:
> The Constitutional Court declared that Muslim marriages which have not yet been dissolved or are in the process of being dissolved at the date of the order (22 June 2022), may be dissolved in accordance with the Divorce Act as follows:
- The entire Divorce Act will be applicable, except that all Muslim marriages must be treated as if they are out of community of property (unless any agreements exist to the contrary).
- In the case of polygamous Muslim marriages, the courts must consider all relevant factors (such as any contracts or agreements) and must make any equitable order that it deems just. The courts may also join any person who has a sufficient interest in the matter (for example, the other spouse in the polygamous Muslim marriage).
> Special protection to minor children in respect of consent to a marriage under section 12(2) of the Children's Act 38 of 2005 will also apply to Muslim marriages concluded after the date of this order. This means that a minor child above the minimum age cannot get married without him/her giving consent.
This decision from the Constitutional Court is a big leap towards addressing the infringements of human rights in respect of religion, custom and belief. It has been a long road towards the recognition of Muslim marriages because South Africa is a diverse country, however, not yet providing legal recognition to all forms of religious marriages. Although this decision only impacts Muslim marriages, it certainly paves the way for other religious marriages to be recognised in the future.
Did you know…Muslim marriages are now legally recognised under South African law.