In the Constitutional Court judgment of the Women’s Legal Centre Trust v President of the Republic of South Africa and Others [2022] ZACC 23 ‘2022, (“WLCT case”), handed down on 28 June 2023, the Constitutional Court recognized the need for and the importance of protecting Muslim women and children of Muslim marriages, particularly in the instance of the dissolution of a Muslim marriage. The WLCT case is crucial in terms of the South African Legal sphere, as the Constitutional Court held that the Divorce Act, 1979 (Act No.70 of 1979) (“Divorce Act”) was unconstitutional to the extent that it failed to recognise Muslim marriages, which have not been recognized as civil marriages, as valid marriages.
The WLCT case marks a pivotal departure from the current position. Currently, Muslim couples who choose to marry according to Islamic law can only be afforded the statutory protection of the South African legal system as it pertains to civil spouses if they, in addition to their marriage under Islamic law, register a civil marriage.
Certain highlights taken out of the WLCT case:
- Both the Marriage Act 25 of 1961 (“Marriage Act”) and the Divorce Act, were declared unconstitutional and in contravention of the provisions of section 9 (equality), section 10 (dignity), section 28 (children) and section 34 (access to courts) of the Constitution of the Republic of South Africa, 1996. The reason for this is that both the Marriage Act and the Divorce Act fail to recognize marriages solemnized with Sharia law (Muslim marriages) which have not been registered in terms of civil marriages, as valid marriages for all purposes in South Africa. The Marriage Act furthermore failed to regulate the consequences of such recognition.
- Section 6 of the Divorce Act is inconsistent with sections section 9 (equality), section 10 (dignity), section 28(2) (children) and section 34 (access to courts) of the Constitution. It is inconsistent insofar as it fails 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.Section 7(3) of the Divorce Act is inconsistent with sections 9 (equality), section 10 (dignity), and section 34 (access to court) 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.
- Section 9(1) of the Divorce Act is inconsistent with sections section 9 (equality), section 10 (dignity), section 28 (children) and section 34 (access to courts) 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 that are dissolved.
- The common law definition of marriage is declared to be inconsistent with the Constitution and invalid to the extent that it excludes Muslim marriages.
- In the interim, the Constitutional Court specified measures which will operate pending the amendment of the Divorce Act or the introduction of new legislation. The Constitutional Court declared that Muslim marriages subsisting on 15 December 2014, or Muslim marriages which have been terminated in terms of the tenets of Islam as at 15 December 2014, in respect of which legal proceedings have been instituted, and which proceedings have not been finally determined by 28 June 2022, may be dissolved in terms of the Divorce Act as prescribed in the WLCT
The purpose of the Divorce Amendment Bill, 2023 is to amend the Divorce Act, in so far as:
- The insertion of a definition of a Muslim marriage into the Divorce Act.
- To provide for the protection and to safeguard the interests of both dependent and minor children of a Muslim marriage.
- To provide for the redistribution of assets on the dissolution of a Muslim marriage.
- To provide for the forfeiture of a patrimonial benefits of a Muslim marriage.
The Divorce Amendment Bill, 2023, seeks to amend the Divorce Act to extend the application of the Divorce Act to Muslim marriages. This will ensure the recognition of Muslim marriages as valid marriages for the purpose of regulating the consequences of dissolution of a marriage as provided for in the Divorce Act.
In view of the aforesaid, the Divorce Amendment Bill, does not constitute or replace an Islamic divorce. Those who still desire to be granted a religious divorce will still need to follow Islamic law.
Following the WLCT Judgment, the Divorce Amendment Bill, 2023, introduced on 20 July 2023, has already been passed by Parliament, by both the National Assembly and National Council of Provinces. Presently, the Divorce Amendment Bill, 2023 is with President of the Republic of South Africa, Cyril Ramaphosa, for signature. There are no financial implications for the State of the Republic of South Africa.
Considering that the Republic of South Africa has a wide and diverse population, regulators and legislation are currently needing to play catchup in streamlining family law in South Africa. The impending amendments to the Divorce Act, will trigger redress to bridge various gaps in current legislation that requires regulation in other religious marriages such as Hindu and other customary practices in some African families within South Africa.