Since the commencement of the Constitution of the Republic of South Africa (“Constitution”), marriages concluded under the Islamic faith (“Muslim marriages”) still do not receive full recognition under South African law. This leaves women and children from Muslim marriages vulnerable upon dissolution of such marriages, either by death or divorce.

Due to the possible polygamous nature of Muslim marriages (allowing a man to have more than one wife), these marriages were considered to be against good morals of society and could not be fully recognised under South African law. However, the past few decades saw changes in the law that provided limited recognition to Muslim marriages, as well as other religious marriages. For example, spouses from religious marriages are recognised for the purposes of maintenance claims, domestic violence matters and inheritance under the law of intestate succession (when a person dies without a Will).

These instances of limited protection resulted from unequal treatment between spouses married under religious marriages and not receiving the same legal protection as spouses married under a recognised marriages (for example, a civil marriage). Section 9 of the Constitution provides that everyone must be treated equally and receive equal protection of the law. They should also not be discriminated against, directly or indirectly, based on race, gender, marital status, ethnic or social origin, colour, religion, conscience, belief, culture, language and so on.

It is also important to note that section 15 of the Constitution provides everyone with the right to freedom of religion and belief. This allows everyone to follow their own religion and, when read with section 30 of the Constitution, to participate in their cultural life. This section also allows for legislation to be drafted to recognise religious marriages. Although a Muslim Marriages Bill has been drafted to recognise Muslim marriages, it still needs to be finalised.

In spite of the protection under the Constitution, the courts are still approached to address disputes regarding Muslim marriages not being fully recognised. The landmark judgment of 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) saw the Supreme Court of Appeal (“SCA”) changing the marriage laws in South Africa significantly and shedding some light on the possibility that Muslim marriages will finally be fully recognised in the future.

Background of the case:

  • In 2015, an application was made in the High Court contending that the state’s ongoing failure to recognise and regulate Muslim marriages amounted to a breach of various provisions in the Constitution, most notably, the State’s duty to respect, protect, promote and fulfil the rights in the Bill of Rights. 
  • In 2018, the High Court ordered the State to draft appropriate legislation that will recognise and regulate Muslim marriages within 24 months of the judgement.
  • The High Court refused to grant an order to the effect that the Divorce Act 70 of 1979 (“Divorce Act”) and Marriage Act 25 of 1961 (“Marriage Act”) be applied to Muslim marriages in the interim period.
  • Dissatisfied with the judgment of the High Court, a successful application for leave to appeal saw the matter to be heard by the SCA.

What the SCA said:

  • 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 it fails to fully recognise Muslim marriages and do not regulate the consequences of such marriages.
  • Other 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.
  • The common law definition of marriage, which defines marriage as “the legally recognised voluntary union for life on 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.
  • The declarations of constitutional invalidity are referred to the Constitutional Court for confirmation and are suspended for a period of 24 months to allow for existing legislation to be amended, or new legislation to be passed that will recognise and regulate Muslim marriages in South Africa.

Relief pending the change of legislation

  • The SCA declared that Muslim marriages which have not yet been dissolved or is in the process of being dissolved at the date of the order (18 December 2020), may be dissolved in accordance with the Divorce Act as follows:
  • The entire Divorce Act will be applicable, except that 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, 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.

In the judgment, the SCA made the following statement:

“The non-recognition of Muslim marriages is a travesty and a violation of the constitutional rights of women and children in particular, including, their right to dignity, to be free from unfair discrimination, their right to equality and to access to court. Appropriate recognition and regulation of Muslim marriages will afford protection and bring an end to the systematic and pervasive unfair discrimination, stigmatisation and marginalisation experienced by parties to Muslim marriages including, the most vulnerable, women and children.”

In light of the above, the courts are addressing the injustices suffered as a result of Muslim marriages not receiving full legal recognition. This SCA case emphasises the need for legislation to be drafted and that several legal aspects relating to marriages and divorce are not in line with the Constitution. Pending the confirmation by the Constitutional Court, the SCA put some interim relief in place that will allow Muslim marriages to get similar protection as civil marriages during divorce proceedings.