South Africa: Marriages under Islamic law given legal status

Women who divorced under Sharia often found themselves helpless and powerless to enforce maintenance and protect the rights of their children

The Constitutional Court has the Supreme Court of Appeal’s ruling that the Marriage Act and the Divorce Act are unconstitutional for not recognizing Muslim marriages.

The Women’s Legal Center Trust and the Muslim Assembly Cape had argued that the non-recognition of Muslim marriages left women without legal protection.

The Muslim Women’s Association of South Africa opposed the request, saying “disgruntled Muslims or modernists” could simply enter into marriages under the Marriage Act.

The Constitutional Court said it was not ruling on the constitutionality of Sharia but only on the difficulties faced by women and children excluded from the benefits of both laws.

The Constitutional Court granted legal recognition to Muslim women married under Sharia, as well as to their children.

In a unanimous judgment, the court upheld that the Marriage Act and the Divorce Act are unconstitutional in that they do not recognize Muslim marriages that have not been registered as civil marriages.

The court further declared unconstitutional the sections of the divorce law that do not provide mechanisms to protect the welfare of children born of Muslim marriages and do not provide for the redistribution of property.

While the court suspended declarations of invalidity for 24 months to allow for the change in legislation, it ruled that in the meantime, the provisions of the Divorce Act will apply to all marriages from 15 December 2014 “as if they were outside community of property”.

Read the full judgment here.

The case went to the Supreme Court for confirmation of similar orders made by the Supreme Court of Appeal. However, the Constitutional Court went further and granted interim measures.

The app, launched by the Women’s Legal Center Trust, had its genesis in applications to the Western Cape High Court which were bundled for the hearing. They were Muslim women married under Sharia, who complained that they had been discriminated against because they had no legal protection.

One had been excluded from the inheritance of her late husband’s estate. Another had not been able to benefit from her husband’s pension fund.

In its early stages, the request was met with opposition from the government, including the president and the Minister of Justice and Constitutional Development, who said the state had no obligation to initiate and enact legislation recognizing Muslim marriages.

Supreme Court of Appeal

However, before the Supreme Court of Appeal, both admitted that both acts violated constitutional rights to equality, dignity and access to a court. They also recognized that children’s rights were also violated.

Writing for the court, Acting Judge Pule Tlaletsi said the main opposition came from the Lajnatun Nisaa-il Muslimaat (Muslim Women’s Association of South Africa) who argued that most Muslims did not consider the no -recognition of their religious marriages as discriminatory. .

They argued that there was a simple solution for those “disgruntled Muslims or modernists” seeking recognition – and that was to marry in terms of Islamic law and marriage law.

The Muslim Assembly Cape (MAC), admitted as a friend of the court, argued that while Sharia dealt with and encouraged marriage contracts, they were “not the norm” because women did not have the means to conclude them, and often lacked any bargaining power.

The AMC also raised the substantial harm and harm suffered by women and children.

“As an institution that deals with these issues on a daily basis, it has stated that it is often powerless to enforce the confiscation or maintenance of women and children…and that often the best it can do is advise the husband to do what is right,” Judge Tlaletsi said.

“Most disturbing, however, is that he notes that he is also powerless in terms of controlling child visitation when he is made aware that a husband has in the past been physically violent.”

Judge Tlaletsi said Muslim marriages had never been recognized as “valid” – and this continues to this day, 28 years into democracy. While in theory women could also choose to marry civilly, this was often not a meaningful choice. Their exclusion from protection under both laws was discriminatory.

He often left women destitute, or with very little wealth, during talaq (divorce).

Regarding the attitude of the Lajnatun Nisaa-il Muslimaat, the judge said: “It is important to emphasize that the existence of discrimination does not depend on the subjective feelings of the various members of the group concerned.

He said failure to recognize the validity of these marriages sends the message that they do not deserve to be recognized or protected by law. Maintaining such a status would support “deeply rooted prejudices”.

“The views of those willing to live under the status quo cannot override the extension and protection of constitutional rights to others.

“Women married to Muslims must be fully included in the South African community so that they can enjoy the fruits of the struggle for human dignity, equality and democracy,” Judge Tlaletsi said.

He noted that Muslim husbands have the power to obtain a unilateral divorce by talaq and that the state has not provided any dispute resolution mechanism in this regard.

“It should be clarified that the constitutionality of Sharia is not under consideration. We are concerned about the difficulties women (and children) face as a result of being excluded from the benefits (of both laws) .”

The court also ruled that the common law definition of marriage was also unconstitutional insofar as it did not recognize Muslim marriages as valid “merely because they are potentially polygamous”.

While the trust wanted an order for the recognition to be backdated to 1994, Judge Tlaletsi said that given the rights of third parties who might be implicated by this, it was necessary to strike a balance.

The order, he said, would apply to all unions validly entered into under Sharia law and subsisting on the date the Trust filed its petition in the High Court (December 15, 2014). It would also apply to marriages that no longer exist, but for which legal proceedings have been brought and have not been the subject of a final decision.

Doubtful people are chasing us. Please support us by contributing to our legal costs and helping us publish important news.

About the author