Cape Town - In a major victory for Muslim women’s rights, the Constitutional Court has confirmed that the Marriage and Divorces Acts were inconsistent with a number of sections of the Constitution insofar as they fail to recognise Muslim marriages as being valid.
In its judgement on Tuesday, it found sections 9, 10, 28, and 34 of the Constitution to be inconsistent and confirmed the Supreme Court of Appeal’s (SCA) order of constitutional invalidity.
The President and Cabinet, together with Parliament have 24 months to remedy the defects so as to render the law constitutionally compliant.
Similarly the Department of Home Affairs and the Department of Justice and Constitutional Development have been ordered to publish a summary of the orders in newspapers and on radio stations, without delay.
The court ruled that the Acts failed to recognise marriages solemnised in accordance with Sharia law (Muslim marriages) which have not been registered as civil marriages, as valid marriages for all purposes in South Africa, and to regulate the consequences of such recognition.
Further in judgment and confirming the SCA’s ruling, a full bench found that section 6 of the Divorce Act was inconsistent as it failed to provide for mechanisms to safeguard the welfare of minor or dependent children born of Muslim marriages, at the time of dissolution of the Muslim marriage in the same or similar manner as it provides for mechanisms to safeguard the welfare of minor or dependent children born of other marriages that are dissolved.
Sections 7 and 9 were also confirmed to be inconsistent in that they fail to provide for the redistribution of assets, on the dissolution of a Muslim marriage, when such redistribution would be just and fails to make provision for the forfeiture of the patrimonial benefits of a Muslim marriage at the time of its dissolution in the same or similar terms as it does in respect of other marriages that are dissolved.
The judgement handed down by Justice Pule Tlaletsi, read: “The fact that the Marriage Act does not recognise Muslim marriages as valid marriages continues to deprive women in and children born of Muslim marriages the remedies and protection that they would be afforded if the marriage had been concluded in terms of that Act. While it is in theory open to women to solemnise a Muslim marriage and, thereafter, marry in terms of the Marriage Act, this is commonly not a meaningful choice, because the evidence presented by the Muslim Assembly Cape (MAC) has shown that women in Muslim marriages are often unable to persuade their partners to conclude civil marriages, oftentimes due to the disparity in their respective bargaining powers.
“In this case, the discrimination, which is unfair, has been found to be unjustifiable and this leads me to conclude that it also infringes the right to dignity.”
Applicant’s in the matter, Women’s Legal Centre Trust (WLCT) celebrated the victory which director, Seehaam Samaai, said has been a long-awaited one which will allow women to navigate and change their own realities in marriage.