Written by Lungelo Mokoena

5 March 2022

NON-RECOGNITION MUSLIM MARRIAGES DECLARED UNCONSTITUTIONAL

Previously, various judgments have shied away from making clear pronunciations on the status of religious marriages in South Africa, particularly Muslim marriages, owing to their potential polygamous nature, which is against public policy. For many years, our courts have battled to give a legal framework to Muslim marriages. The South African Legal Reform Commission has taken it upon itself to formulate the draft Muslim Marriages Bill, which was published in 2000; however, no change was seen until the Supreme Court of Appeal (“SCA”) passed judgment on 18 December 2020.

Are Muslim marriages legally binding?

The Marriages Act does not define what a ‘marriage’ is, nor does it limit the scope of marriage to civil marriages. It may include a marriage entered into in terms of other laws, such as Islamic law, which was in conflict with South African law. Therefore, Muslim marriages were treated as marriages entered into by the parties in good faith but are legally invalid and automatically entered into as marriages that were concluded out of community of property, with the exclusion of the accrual system. Thus, the proprietary consequences were essentially the same as those granted to unmarried people.

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 Marriages Act and the Divorce Act were inconsistent with the Constitution and required legislative reform.

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.

How do I get divorced if I am married by Islamic laws?

The non-recognition of marriages solemnised under Sharia law has historically had the effect that such marriages would not be dissolved by the courts in terms of the Divorce Act. Thus, the only proof of the dissolution of such marriages was an annulment decree issued by the Imam (Muslim priest).

Owing to the recent developments in the law, parties who wish to dissolve their Muslim marriages may soon be able to do so in terms of the Divorce Act, which is to be amended by our legislature. The necessary amendments to existing legislation, or possibly the development of laws for marriages concluded under Sharia law, will provide a framework, where necessary. However, for all intents and purposes, such marriages are currently deemed to be valid unions, which need to be dissolved in accordance with the provisions of the Divorce Act.

What are the patrimonial consequences of Muslim marriages?

As far as the marital regime in Muslim marriages is concerned, the previous position was that the marriage would be out of community of property, without accrual.

The SCA held that, in respect of legal proceedings which have been instituted and those not finally determined as of 18 December 2020, Muslim marriages 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 s7(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 shall:

(i) take into consideration 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.”

All the provisions of the Divorce Act are now applicable to Muslim marriages, which shall be treated as if they are out of community of property, except where there are agreements in place to the contrary.

In conclusion, the SCA judgment referred to above has been ground-breaking in that the law has finally changed its position on Muslim marriages.

Should you be married, whether according to Sharia law or otherwise, and wish to dissolve your marriage, do not hesitate to contact us at Burger Huyser Attorneys, and one of our family law and divorce attorneys will contact you.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE