The importance of recognising Islamic marriages in our constitutional democracy cannot be stressed enough. In South Africa, Muslim women and children are a vulnerable group in a pluralistic society such as ours. The failure to recognise Muslim marriages is a tragedy and an infringement of the constitutional rights of women and children, including, their right to dignity, to be free from unfair discrimination, their right to equality and to access to court.
Muslim marriages have never and continue not be recognised nor regulated by South African law despite 26 years under a democratic constitutional dispensation that is founded, inter alia, on the values of ‘human dignity, the achievement of equality and the advancement of human rights and freedoms’.
The Constitutional Court, the Supreme Court of Appeal and the High Courts of South Africa have expressed trenchant criticism of the failure on the part of the State to take the necessary steps to afford legal recognition to Islamic Marriages, the disadvantages, hardships, and prejudice for parties to Islamic Marriages, especially Muslim women and children continue to prevail.
Moseneke J succinctly stated the following in Daniels v Campbell No and Others:
“This “persisting invalidity of Muslim Marriages” is, of course, a constitutional anachronism. It belongs to our dim past. It originates from deep- rooted prejudice on matters of race, religion and culture. True to their view, Judges of the past displayed remarkable ethnocentric bias and arrogance at the expense of those they perceived different. They exalted their own and demeaned and excluded everything else. Inherent in this disposition, says Mahomed CJ, is “inequality, arbitrariness, intolerance and inequity”.
The stereotypical and stunted notions of marriage and family must now succumb to the newfound and restored values of our society, its institutions, and diverse people. They must yield to societal and constitutional recognition of expanding frontiers of family life and intimate relationships. Our Constitution guarantees not only dignity and equality but also freedom of religion and belief. What is more, s 15 (3) of the Constitution foreshadows and authorizes legislation that recognizes marriages concluded under any tradition or a system of religious, personal or family law Such legislation is yet to be passed in regard to Islamic marriages”.
Recently, on 18 December 2020, the Supreme Court of Appeal in the matter of President of the RSA and Another v Women’s Legal Centre Trust and Others; Minister of Justice and Constitutional Development v Far and Others; and Minister of Justice and Constitutional Development v Esau and Others (612/19) [2020], held the following:
1. The Marriage Act, 25 of 1961 (“the Marriage Act”) and the Divorce Act, 70 of 1967 (“the Divorce Act”) are declared to be inconsistent with sections 9, 10, 28 and 34 of the Constitution of the Republic of South Africa, 1996, in that they fail to recognise marriages solemnised in accordance with Sharia law (Muslim marriages) as valid marriages (which have not been registered as civil marriages) as being valid for all purposes in South Africa, and to regulate the consequences of such recognition.
2. It is declared that section 6 of the Divorce Act is inconsistent with sections 9, 10, 28(2) and 34 of the Constitution insofar as it fails to provide for mechanisms to safeguard the welfare of minor or dependent children of Muslim marriages at the time of dissolution of the Muslim marriage in the same or similar manner as it provides mechanisms to safeguard the welfare of minor or dependent children of other marriages that are being dissolved.
3. It is declared that section 7(3) of the Divorce Act is inconsistent with 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.
4. It is declared that section 9(1) of the Divorce Act is inconsistent with section 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.
5. The declarations of constitutional invalidity are referred to the Constitutional Court for confirmation.
6. The common law definition of marriage is declared to be inconsistent with the Constitution and invalid to the extent that it excludes Muslim marriages.
7. The declarations of invalidity in paragraphs 1 – 5 above are suspended for a period of 24 months to enable the President and Cabinet, together with Parliament, to remedy the foregoing defects by either amending existing legislation or passing new legislation within 24 months to ensure the recognition of Muslim marriages as valid marriages for all purposes in South Africa and to regulate the consequences arising from such recognition.
8. Pending the coming into force of legislation or amendments to existing legislation referred to in paragraph 1.7, it is declared that a union, validly concluded as a marriage in terms of Sharia law and subsisting at the date of the order, or which has been terminated in terms of Sharia law, but in respect of which legal proceedings have been instituted and which proceedings have not been finally determined as at the date of the order, may be dissolved in accordance with the Divorce Act as follows:
a. All the provisions of the Divorce Act shall be applicable save that all Muslim marriages shall be treated as if they are out of community of property, except where there are agreements to the contrary; and
b. The provisions of section 7(3) of the Divorce Act shall apply to such union regardless of when it was concluded;
c. In the case of a husband who is a spouse in more than on Muslim marriage, the court shall:
i. Take into consideration all relevant all relevant factors including any contract or agreement and must make any equitable order that it deems just, and;
ii. May order that any person who in the court’s opinion has a sufficient interest in the matter be joined in the proceedings.
9. It is declared that, from the date of this order, section 12 (2) of the Children’s Act, 38 of 2005, applies to Muslim marriages concluded after the date of this order.
10. For the purpose of applying paragraph 9 above, the provisions of sections 3(1)(a), 3(3)(a) and 3(3)b), 3(4)(a) and 3(4)b, and 3(5) of the Recognition of Customary Marriages Act, 120 of 1998, shall apply, mutatis mutandis, to Muslim marriages.
The Constitutional Court has essentially crafted an effective and comprehensive order in an endeavour to cure the hardships suffered by parties to Muslim marriages, especially vulnerable women and children, that will operate until appropriate legislation is put in place.
Author: Lyalle Windvogel
