Muslim marriages given full legal recognition

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 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.

  • An order was made for relief pending amendment of the relevant laws. The pending relief included special protection for minor children in respect of consent to marriage. It was held that 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.

Amendment to existing legislation:

  • Following the Constitutional Court ruling, the legislature proceeded to attend to the necessary changes. On 1 May 2024, the Divorce Act were amended to include the following: 

  • Muslim marriages are now specifically included in the definition of a marriage and the courts may now dissolve such marriages and grant a divorce decree .

  • The welfare of dependent and minor children in Muslim marriages will now form part of the divorce proceedings in court, thus allowing the courts to ensure that the children’s interests are taken into consideration. 

  • The court may now issue orders for the forfeiture and redistribution of assets in Muslim marriage divorces where it is equitable to do so. 

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.