Recognition of Muslim Marriages

Mohamed Raees Hussain | Attorney : Legal Services Division

Recognition of Muslim Marriages: Constitutional invalidity of certain sections of the Marriage Act 25 of 1961, the Divorce Act 70 of 1979, and the Common Law definition of Marriage, confirmed by the Country’s Highest Court.

 

Prior to a Supreme Court of Appeal judgement in 2020, Muslim marriages in South Africa were not recognized, regulated, or afforded protection in terms of legislation.

Background:

In order for a Muslim marriage to be regulated, it was necessary that a separate civil ceremony be concluded either in terms of the Marriage Act 25 of 1961 (the Marriage Act), or in terms of the Civil Union Act 17 of 2006 (the Civil Union Act). If this further civil ceremony was not concluded, then the marriage would be subject to the normal proprietary consequences of an unmarried person. Further to this, a divorce order was not required to finalize the dissolution of the marriage. 

The Supreme Court of Appeal (SCA), in the 2020 judgment of President of the RSA and Another v Women’s Legal Centre Trust and Others; Minister of Justice and Constitutional Development v Faro and Others; and Minister of Justice and Constitutional Development v Esau and Others (case no. 612/19) [2020] ZASCA 177, set a precedent for Muslim marriages for South African jurisprudence and made a declaration that the Marriage Act and the Divorce Act were inconsistent with the Constitution and required legislative reform.

Summary of the SCA decision:

The SCA held that the Marriages Act was inconsistent with sections 9, 10, 28, and 34 of the Constitution for its failure to recognise and solemnise marriages in accordance with Sharia law and to regulate the consequences of such recognition.

The court also found section 6 of the Divorce Act to be inconsistent with the Constitution in that it fails to safeguard the welfare of minor or dependent children born of Muslim marriages upon the dissolution of those marriages.

Further to this, section 7(3) of the Divorce Act was declared unconstitutional for its failure to provide for the redistribution of assets at the dissolution of a Muslim marriage. In the same context, section 9(1) of the Divorce Act fails to make provision for forfeiture of patrimonial benefits in a Muslim marriage.

It was held that the common law definition of marriage was inconsistent and thus invalid insofar as it excludes Muslim marriages.

The above declarations of constitutional invalidity were referred to the Constitutional Court for confirmation, in terms of which the Constitutional Court made the following Order:

  1. The Supreme Court of Appeal’s order of constitutional invalidity is confirmed:
1.1  The Marriage Act 25 of 1961 (Marriage Act) and the Divorce Act 70 of 1979 (Divorce Act) are declared to be inconsistent with sections 9, 10, 28 and 34 of the Constitution in that they fail to recognise marriages solemnised in accordance with Sharia law (Muslim marriages) which have not been registered as civil marriages, as valid marriages for all purposes in South Africa, and to regulate the consequences of such recognition.
1.2  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 born of Muslim marriages, at the time of dissolution of the Muslim marriage 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 are dissolved.
1.3 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.
1.4 It is declared that section 9(1) of the Divorce Act is inconsistent with sections 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 that are dissolved.
1.5 The common law definition of marriage is declared to be inconsistent with the Constitution and invalid to the extent that it excludes Muslim marriages.
1.6.The declarations of invalidity in paragraphs 1.1 to 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 initiating and passing new legislation within 24 months, in order 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.
1.7. Pending the coming into force of legislation or amendments to existing legislation referred to in paragraph 1.6, it is declared that Muslim marriages subsisting at 15 December 2014, being the date when this action was instituted in the High Court, or which had been terminated in terms of Sharia law as at 15 December 2014, but in respect of which legal proceedings have been instituted and which proceedings have not been finally determined as at the date of this 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 Divorce Act shall apply to such a union regardless of when it was concluded.
(c) In the case of a husband who is a spouse in more than one Muslim marriage, the court:
(i)shall take into consideration all relevant factors, including any contract or agreement between the relevant spouses, 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.
1.8. Pending the coming into force of legislation or amendments to existing legislation referred to in paragraph 1.6, it is declared that, from the date of this order, section 12(2) of the Children’s Act 38 of 2005 applies to a prospective spouse in a Muslim marriage concluded after the date of this order.
1.9. Pending the coming into force of legislation or amendments to existing legislation referred to in paragraph 1.6, for the purpose of paragraph 1.8 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.
Legal Implications of the Order of the Constitutional Court in respect of Muslim Marriages:
      1. Prior to 15 December 2014:
  • If the Muslim Marriage was dissolved in accordance with Shariah law, at any time prior to 15 December 2014, then the parties to the already terminated Muslim Marriage will not be entitled to any relief in terms of the provisions of the Divorce Act.

2. After 15 December 2014:

  • If a Muslim Marriage subsists as at 15 December 2014, and is thereafter dissolved according to Shariah law, or in accordance with the Divorce Act. In this case, the parties to the Muslim Marriage may seek appropriate relief by invoking the provisions of the Divorce Act, including a just and equitable division of assets, maintenance for a spouse and minor children, custody, guardianship of, or access to a child and forfeiture of patrimonial benefits of the marriage.
  • Where a Muslim Marriage, which had already been terminated in terms of Shariah law as at 15 December 2014, and such legal proceedings have not been finally determined as at the date of the Court Order (28 June 2022). In this instance, the parties may invoke all the provisions of the Divorce Act to obtain appropriate relief.
3. The common law definition of marriage now includes Muslim Marriages, including the recognition of spouses in polygynous marriages.

 

What does this mean for Muslim Marriages in South Africa?

Pending the enactment of new legislation or the amendment of current legislation to regulate Muslim marriages, the provisions of the Divorce Act shall apply to all marriages concluded in terms of Shariah law from 15 December 2014 as if they are out of community of property.

In terms of this Judgement, the Government has been afforded 24 months to address the regulation of Muslim marriages and although significant strides have been made in the recognition of Muslim marriages, it is yet to be seen how the Government deals with its regulation, i.e., either through the amendment of current legislation or the enactment of new legislation.

For further details or advice in this regard, it is best that you speak to a Legal Practitioner (Attorney)