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Legal recognition for Muslim marriages in South Africa

For the past 28 years of our democracy Muslim marriages have not been recognised as valid under South African law. On the 28 June 2022, the Constitutional Court handed down a landmark judgment in the matter of Women’s Legal Centre Trust v President of The Republic of South Africa and Others to confirm an order of the Supreme Court of Appeal which recognizes marriages solemnized in accordance with Sharia law (Muslim marriages) as valid marriages and declares certain sections of the Marriage Act and Divorce Act unconstitutional.

Background
In the past the only way for Muslim marriages to be recognised was to register the marriage as a civil marriage where the marriage was solemnised before a registered marriage officer either in terms of the Marriage Act 25 of 1961 or the Civil Union Act 17 of 2006. If not, the marriage was not valid and the parties were considered “unmarried” with the resultant proprietary consequences being of a couple married out of community of property excluding the accrual system. Without legal protection however, many Muslim woman and their children were left vulnerable and could not enjoy the same rights and remedies afforded to woman and their children in civil marriages.
The WLCT first brought an Application to the Western Cape High Court in 2014 praying for legislation that would recognise and regulate Muslim marriages in South Africa within 12 months, alternatively to declare the Marriage Act, Divorce Act and the Recognition of Customary Marriages Act inconsistent in so far as they failed to recognise the validity of Muslim marriages. In 2018, judgement was handed down by the High Court in favour of the WLCT. The High Court held that the President and Cabinet had failed to fulfil their constitutional obligations in terms of section 7(2) of the Constitution which requires the South African state to “respect, protect, promote and fulfil the rights in the Bill of Rights” and to enact legislation to recognise and regulate Muslim marriages. 
The State later appealed the judgment and lost with the Supreme Court of Appeal ruling that in failing to recognise Muslim marriages, both the Marriage Act and the Divorce Act contravenes fundamental constitutional rights of equality; dignity; best interests of the child; and access to courts. The Constitutional Court brought finality to the matter by confirming the SCA judgment.

Findings at Con Court
• The common law definition of marriage is declared to be inconsistent with the Constitution to the extent that if fails to recognise Muslim marriages as valid. The common law definition of marriage is extended and now includes Muslim marriages.
• The Marriage Act and the 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, as valid and to regulate the consequences of such recognition. 
• The following sections of the Divorce Act is declared unconstitutional:
1.  Section 6 of the Divorce Act is declared inconsistent with the Constitution as it fails to safeguard the interests of minor children in relation of their care and maintenance at the time of dissolution of the Muslim marriage.
2. Section 7(3) of the Divorce Act is unconstitutional insofar as it fails to regulate the division of assets on the dissolution of a Muslim marriage in a way that is just and equitable, as it offers women in civil marriages.
3.  Section 9(1) of the Divorce Act fails to make provision for the forfeiture of the patrimonial benefits of a Muslim marriage, in the same or similar way as it does in case of other marriages.

Legal Implications
The Constitutional Court suspended the declarations of invalidity for 24 months to allow for the legislation to be amended or to adopt legislation that gives sufficient recognition to Muslim marriages. Pending this, the following applies:
• All Muslim marriages which had been terminated in terms of Sharia law as at 15 December 2014, and legal proceedings have not been finalised on date of this order, being 28 June 2022, such marriage may be dissolved in accordance with the Divorce Act.

• By implication, if the Muslim marriage was dissolved in accordance with Sharia law at any time prior to 15 December 2014, and legal proceedings have been finally determined, the parties to the terminated Muslim marriage will not be entitled to relief in terms of the provisions of the Divorce Act.

• The provisions of the Divorce Act shall apply to all marriages concluded in terms of Sharia law from 15 December 2014 as if they are out of community of property, except where parties have agreements to the contrary. Therefore, the parties to the Muslim marriage may invoke the provisions of the Divorce Act, including maintenance for a spouse and minor children, custody, guardianship of, or access to a child and forfeiture of patrimonial benefits of the marriage.

• The provisions of section 7(3) of the Divorce Act, dealing with redistribution of assets, shall apply to Muslim marriages regardless of when the marriage was concluded.

• In the case of a polygamous Muslim marriage the court 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 may order that any person who in the court’s opinion has a sufficient interest in the matter be joined in the proceedings. 

The judgment has been cited as a step in the right direction towards the recognition of Muslim marriages. Equally important however, is the understanding that Sharia law has not yet been implemented as part of South African law. It will be interesting to see how this will be brought to fruition in governing Muslim marriages, whether through the amendment of existing legislation or the enactment of new legislation that will follow.