DR MUNEER ABDUROAF presents an overview of the recent Constitutional Court judgement regarding Muslim marriages.
THERE has (to date) been no legislation enacted by the South African government that gives full recognition to a marriage concluded in terms of Islamic law (Muslim marriage) and that regulates the consequences that flow from such a marriage, in terms of Islamic law. This status has led to much difficulty for couples in Muslim marriages. If, for example, a spouse to a Muslim marriage dies then the death certificate of that spouse would state ‘never been married’.
The matter concerning ‘recognition’ of Muslim marriages was heard by the Constitutional Court (Concourt) on August 5, 2021, and the judgment was handed down on June 28, 2022. It should be noted that the Concourt judgment stemmed from the Supreme Court of Appeal judgment that was handed down on December 18, 2022, and the Western Cape Division of the High Court judgment that was handed down on August 31, 2018.
The Concourt declared (in its judgment) that certain parts of the Marriage Act 25 of 1961 are unconstitutional as 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 [it fails] to regulate the consequences of such recognition.’ (See para 86 of the Women’s Legal Centre Trust v President of the Republic of South Africa and Others  ZACC 23 judgment for the details of the order).
The Concourt declared that certain parts of the Divorce Act 70 of 1979 are unconstitutional for a number of reasons. It states in the judgment that the Divorce Act 70 of 1979 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.’ It states that the Divorce Act 70 of 1979 ‘fails to provide for the redistribution of assets, on the dissolution of a Muslim marriage, when such redistribution would be just [and 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.’
The Concourt also declared that the ‘common law definition of marriage is declared to be inconsistent with the Constitution and invalid to the extent that it excludes Muslim marriages.’ The Concourt suspended the declarations of invalidity for 24 months from June 28, 2022, to give the relevant structures within the South African government the opportunity to do what is necessary in order to recognise Muslim marriages for all purposes in South Africa and to also regulate the consequences that flow from such recognition.
It is noted that the Concourt has granted interim relief that could be used by a couple who are subject to a Muslim marriage, during the period prior to the South African government doing what is necessary in order to give full recognition to Muslim marriage and to regulate the consequences that flow therefrom in terms of Islamic law.
The interim relief however only applies to ‘Muslim marriages … [that subsisted on] 15 December 2014 … 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 …’ The Concourt interim relief deals with, amongst other things, the requirements for concluding a Muslim marriage, the dissolution of a Muslim marriage and the patrimonial consequences that flow from a Muslim marriage.
The Concourt judgment deals with the requirements for concluding a Muslim marriage (my emphasis) during the interim relief period. It refers to consent and age requirements. Basically, both parties to the marriage must be 18 years of age or older and must have consented to concluding the marriage between them. If either of the parties to the marriage is under the age of 18, then he or she must obtain consent by his or her parents (parental consent) as well as consent by the Minister of Home Affairs (ministerial consent). Once all the consents are obtained then the imam can conduct the Muslim marriage with the general formalities. Shaikhs, imams and Moulanas etc. must take note of this part of the judgment when officiating over a Muslim marriage.
The Concourt held that a Muslim marriage may be dissolved in terms of the Divorce Act 70 of 1979. This might be quite complicated if this means that the Islamic marriage would be dissolved by the secular court. The Concourt held that a Muslim marriage would be treated as if it was a marriage out of community of property, unless there is an agreement or agreements to the contrary (my emphasis). It is noted that agreements between parties may differ from one couple to another. The Concourt further held 7(3) of the Divorce Act 70 of 1979 (concerning redistribution of assets) would be applicable to the Muslim marriage regardless when the Muslim marriage was concluded.
The Concourt then deals with polygynous marriages (one husband with more than one wife). The Concourt held that 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…’
It can clearly be seen from the above that application of the interim relief could be tricky based on the circumstances of the spouses in the Muslim marriage. I would thus recommend that if a party intends on dissolving their Muslim marriage based on the interim relief, that advice should be sought from an Islamic scholar to ensure that the end result of their endeavour is also compliant with Islamic law.
- Dr Muneer Abduroaf is imam at Masjidur-Raoof in Highlands Estate, a senior law lecturer at University of Western Cape and CRL and has been appointed by the President of South Africa as a Commissioner on the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (the CRL Rights Commission).
This post was updated on August 4, 2022 to include links to the Women Legal Centre summary of the Cape High Court and Supreme Court of Appeal judgements and the full judgement of the Constitutional Court in the matter.