HISTORIC AMENDMENT: PRESIDENT RAMAPHOSA SIGNS DIVORCE AMENDMENT BILL 2023 INTO LAW AIMING TO ACHIEVE EQUAL RIGHTS AND PROTECTION FOR MUSLIM MARRIAGES IN SOUTH AFRICA

In May 2024, President Cyril Ramaphosa signed the Divorce Amendment Bill 2023 (“the Bill”) into law. This legislative change addresses important gaps in the legal recognition and protection of Muslim marriages in South Africa.

What prompted the creation of the Divorce Amendment Bill?

The Bill was created to address legal inequalities faced by individuals in Muslim marriages, particularly regarding divorce and asset distribution. A 2022 Constitutional Court ruling highlighted these issues, especially the lack of statutory protection for Muslim women and children in marriages not registered as civil marriages.

What was the situation before the Bill?

Before the Bill, only Muslim marriages registered as civil marriages were afforded protection under South African law. In polygynous Muslim marriages, only the wife with a civil marriage registration was protected. This left many women and children without legal safeguards during divorce.

What changes does the Divorce Amendment Bill bring?

The Bill introduces several significant changes:

1. Recognition of Muslim Marriages: It legally defines Muslim marriages, ensuring they are recognized under South African law.
2. Child Welfare: It amends Section 6 of the Divorce Act to provide mechanisms to safeguard the welfare of minor or dependent children from Muslim marriages during divorce.
3. Asset Redistribution: It amends Section 7 to allow courts to redistribute assets fairly in Muslim divorces.
4. Patrimonial Benefits: It amends Section 9 to enable the forfeiture of patrimonial benefits in Muslim marriages, similar to other marriages.

How does the Bill affect children from Muslim marriages?

The Bill ensures that during the dissolution of a Muslim marriage, the welfare, and rights of minor or dependent children are considered and protected, aligning their treatment with that of children from other types of marriages.

What about asset distribution in Muslim divorces?

Courts can now redistribute assets in a manner that is just, similar to the provisions available in divorces under the existing Laws. This means that both spouses in a Muslim marriage can seek a fair share of the marital assets.

Does the Bill affect only Muslim marriages?

While the primary focus is on addressing the legal disparities in Muslim marriages, the Bill reflects a broader commitment to accommodating diverse religious and customary practices in South African family law.

What are the broader implications of the Bill?

The Bill demonstrates South Africa’s dedication to evolving its legal system to be more inclusive and protective of its diverse population. It marks a significant step towards legal equality for all marriage types in the country.

Conclusion

The Divorce Amendment Bill of 2023, which has now been passed into law (Divorce Amendment Act, 2024), marks a progressive shift in South African family law. By recognizing and protecting Muslim marriages, it ensures that women and children in these unions receive the same legal protections as those in civil marriages. This legislative update underscores South Africa's commitment to fairness and equality in its legal framework.

*the above is for information purposes only and should not be construed as legal advice and whilst the Bill (now law) seeks to remedy various inconsistencies, it is important for parties to seek Shariah opinions to ensure that any claims are within the rights given by Shariah*