In what has been hailed a landmark victory for the recognition of Muslim marriages, the Supreme Court of Appeal (SCA) ruled that the Marriage Act 25 of 1961 and the Divorce Act 70 of 1979, are inconsistent with the Constitution.
The SCA has given the president and the Cabinet, together with Parliament to remedy the “defects” by either amending existing legislation, or passing new legislation within 24 months, in order to ensure the recognition of Muslim marriages as valid marriages.
The court found that sub-sections 9, 10, 28 and 34 fail to recognise marriages solemnised in accordance with sharia law as valid marriages.
It was declared that Section 6 of the Divorce Act is also inconsistent with with the same sub-sections of the Constitution and that it fails to provide for mechanisms to protect the rights of minor or dependent children of Muslim marriages.
The court found that under the old marriage and divorce acts, children of a Muslim marriage are particularly prejudiced at the time of dissolution of the Muslim marriage.
The SCA ruled, children from Muslim marriages should be afforded the same rights and protection as children from other marriages.
In its judgement, the highest court in the land said: “It is declared that section 7(3) of the Divorce Act is inconsistent with sub-sections 9, 10, and 34 of the Constitution insofar as it fails to provide for the redistribution of assets, on the dissolution of a Muslim marriage, when such redistribution would be just. It is declared that section 9(1) of the Divorce Act is inconsistent with sub-sections 9, 10 and 34 of the Constitution insofar as it 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”.
The common law definition of marriage was also declared to be inconsistent with the Constitution and invalid to the extent that it excludes Muslim marriages. When the new laws come into effect, it will declare that a union, validly concluded as a marriage in terms of sharia law can also be dissolved under that same law.
Under the new law, Muslim marriages shall be treated as if they are out of community of property, except where there are agreements to the contrary, and all the provisions of the Divorce Act will apply.
The law will also apply in the case of a husband who is a spouse in more than one Muslim marriage, depending on the agreement entered into between the spouses. The Department of Home Affairs and the Department of Justice & Constitutional Development will, when the new laws come into effect, publish a summary of the orders in newspapers and on radio stations to announce the changes.
There currently are no policies and procedures in place to determine disputes arising from the validity of Muslim marriages and the validity of divorces granted by any person or association according to the tenets of sharia law.
The appeal against the Marriage and Divorce Acts were brought by several respondents who have been advocating for the recognition of shariah marriages and include the Muslim Judicial Council, The Commission for Gender Equality, the United Ulama Council of South Africa and The Women’s Legal Centre Trust.