The legislature continues to play catchup in Family Law to ensure that the law is aligned with the Constitution and the goals which South Africa wishes to receive as a democracy, including equality.
Our legislation as it stands does not regulate some religious marriages in South Africa, such as Muslim marriages.
As a result, Muslim couples who choose to marry according to Islamic or Sharia law are not afforded statutory protection in terms of South African Family Law, unless they have registered their Islamic marriage as a civil marriage with Home Affairs. Those marriages not formally registered as civil marriages are therefore simply not recognised.
This differs from the recognition of customary marriages, which are recognised as marriages and are subject to South African family law, even in the event that the marriage is not registered as a civil marriage.
Certain sections of the Divorce Act 70 of 1979 were therefore declared unconstitutional in the Constitutional Court case of Women's Legal Centre Trust v President of the Republic of South Africa and Others heard on 28 June 2022 for failing to uphold the Constitutional values of equality, dignity and the best interests of children.
The aim of the Divorce Amendment Bill is to extend the application of the Divorce Act to include Muslim marriages, in order to protect Muslim women in Muslim marriages, as well as their children, at the dissolution of a marriage.
The proposed amendment are as follows:
- The definition of a Muslim marriage is to be included in the Divorce Act, which has been defined as a marriage entered or concluded in accordance with the tenets of Islam.
- Courts are to be granted the power to dissolve Muslim marriages.
- Mechanisms are to be included to safeguard the welfare of minor or dependent children born of Muslim marriages, 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 would include dealing with the maintenance, guardianship, care and contact in respect of minor and dependent children in a divorce.
- The redistribution of assets on the dissolution of a marriage will become applicable to Muslim marriages in circumstances where it would be fair. The factors to be considered in this regard are proposed to be extended to include any contract or agreement between the parties in a Muslim marriage where the husband is a spouse in more than one Muslim marriage. This amendment aims to protect women in Muslim marriages where their husband is a spouse in more than one Muslim marriage.
- The forfeiture of the patrimonial benefits of a marriage will become applicable to Muslim marriages at dissolution in the same or similar terms as it does in respect of other marriages that are dissolved.
Pending the amendment, Muslim marriages may be dissolved in accordance with the Divorce Act if the marriage existed on 15 December 2014, or if the marriage had already been terminated in terms of Sharia law on 15 December 2014, but legal proceedings were pending in respect of the termination of the marriage.
The Divorce Act therefore applies to the dissolution of Muslim marriages in the interim, with the proviso that Muslim marriages shall be considered to be concluded out of community of property, except where there are agreements to the contrary.
This is a win for another vulnerable group of society who have been previously disadvantaged and inadvertently discriminated against as a result of the failure to recognise Muslim marriages.
As this is an all-new concept in our law, we expect that there will be teething issues as the law continues to develop. Be that as it may, it is definitely a step in the right direction.
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