INTRODUCTION
In South Africa, both Muslim marriages concluded in accordance with the tenets of Sharia law and Hindu marriages have for majority of our history been unrecognized and unregulated. This lack of recognition stems from such marriages potentially becoming polygamous which is in contravention of the Constitution of South Africa. Unfortunately, significant consequences and disadvantages arise for spouses who are party to such a marriage as they are not afforded the same protection and granted similar legal rights as spouses party to a marriage concluded in terms of the Marriage Act 25 of 1961 (“Marriage Act”).
MUSLIM MARRIAGES
The Women’s Legal Centre Trust (“WLCT”) challenged the legal position of invalidity in respect of Muslim marriages which commenced its pursuit in 2014 by means of an application to the Western High Court. Fast forward to 2022, the matter was eventually brought before the Constitutional Court to, inter alia, confirm the previous Supreme Court of Appeal judgment including that the Marriage Act and the Divorce Act 70 of 1979 (“Divorce Act”) did infringe the constitutional rights to equality, dignity and access to courts of women in Muslim marriages.
On 28 June 2022, the Constitutional Court, handed down this recent judgment of WLCT v President of The Republic of South Africa and Another. The Court held in its greatly significant ruling that, inter alia:-
The common law definition of marriage was declared invalid insofar as it excludes Muslim marriages.
Specific sections of the Marriage Act and the Divorce Act were declared to be inconsistent with sections 9, 10, 28 and 34 of the Constitution in that:-
a. both the Marriage Act and the Divorce Act 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;
b. the Divorce Act insofar as it fails to provide for the redistribution of assets, on the dissolution of a Muslim marriage, when such redistribution would be just;
c. the Divorce Act 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; and
d. the Divorce Act 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.
The Constitutional Court referred to many well-recognized principles in our law including that women are particularly vulnerable in our society, specifically as it relates to their roles in families. On an international level, the Court also considered that South Africa is obliged to take reasonable steps to prevent and dispel discrimination of married women.
What is the effect of such a ruling?
The Constitutional Court judgment as it pertains to the invalidity of certain sections of the Marriages Act and the Divorce Act has been suspended for 24 months (until 27 June 2024) in order to provide the Legislature (i.e. Parliament) to make the necessary amendments or take further steps to address these inequalities in our legislation. The judgment specifically provides that the President, the cabinet and Parliament are to enact ‘legislation to recognise marriages solemnised in accordance with the tenets of Sharia law (`Muslim marriages’) as valid marriages AND to regulate the consequences of such recognition’.
In the interim, it was held that all Muslim marriages already existing as at 15 December 2014 may now be dissolved in terms of the Divorce Act. More specifically, section 7(3) of the Divorce Act would have application in so far as it regulates the redistribution of assets. Furthermore, pending the new legislation, section 12(2) of the Children’s Act 38 of 2005 now also applies to a prospective spouse in a Muslim marriage concluded after the date of the judgment and 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 also apply to Muslim marriages.
In effect, it is no longer necessary for a Muslim marriage to be registered as a civil marriage in order to be recognized which was the case prior to this judgment. Importantly, unless agreed otherwise between the spouses the matrimonial property regime of all Muslim marriages now entered into will be regarded as out of community of property.
This Constitutional Court judgment is monumental to all women who have entered into or will enter into a Muslim marriage in terms of Sharia law. As part of the legal community, we are hopeful that Parliament will promptly enact the necessary legislation in order to provide the legal protection each spouse in a Muslim marriage is entitled to.
HINDU MARRIAGES
Although the aforementioned Constitutional judgment proved to be a big ‘leap’ in our legal reform, the non-recognition of Hindu marriages remains unaltered in our law. Women in unrecognized Hindu marriages similarly suffer immensely due to the lack of protection under our law. The High Court in Singh v Ramparsad 2007 3 SA 445 (D) rejected the notion that the Marriages Act and Divorce Act violated the constitutional rights of women in Hindu marriages and failed to recognize Hindu marriages as valid in South Africa. In this regard, the Court ruled that a surviving spouse in a monogamous Hindu marriage shall, with limitation, also be recognized as a spouse only for purposes of the Intestate Succession Act.
Unfortunately, South African law and in turn our Courts are yet to scrutinize the discrimination flowing from the non-recognition of Hindu marriages and to make provision for the unequivocal recognition thereof.
In the interim, we recommend any client that is considering a traditional marriage, or a religious marriage, should enter into an antenuptial contract as in future, the status quo may well change regarding the legal recognition of non-civil marriages.
Should you have any inquiries relating to an existing or prospective Hindu or Muslim marriage, the dissolution thereof or disputes relating thereto – please reach out to our team at Spence Attorneys at our Johannesburg or Cape Town branch.
This article is for information purposes only, may contain errors and/or omissions, and should not be regarded as legal advice. Always seek legal advice from your attorney. Spence Attorneys will not be held liable for any person acting or failing to act on any content on our website. Copyright and subject to our online terms and conditions.
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