KAAMILAH PAULSE tracks the court journey that led to the Constitutional Court upholding the recognition of Muslim marriages.
On June 28, 2022, in a long-awaited and much-anticipated judgment, the constitutional court (CC) in Women’s Legal Centre Trust v President of the Republic of South Africa and Others  ZACC 23 declared the Marriage Act 25 of 1961 (Marriage Act) and the Divorce Act 70 of 1979 (Divorce Act) to be inconsistent with sections 9, 10, 28, and 34 of the Constitution because they fail to recognise marriages solemnised by Sharia law (Muslim marriages).
First step: Western Cape Division of the High Court
This matter first appeared before the Western Cape High Court in December 2014, when three applications were consolidated. The Women’s Legal Centre Trust (WLCT) filed an application, rights enshrined in sections 9(1), (2), (3), and (5), section 10, section 15(1) and (3), section 28(2), section 31, and section 34 of the Constitution by failing to pass legislation that recognises and regulates Muslim marriages.
The second application concerned the plight of Ms Faro, whose constitutional challenge is included in the consolidated application. Ms Faro had objected to the winding up of her deceased husband’s estate because the Master of the High Court did not consider her to be the surviving spouse of her deceased husband’s estate and, as such, could not inherit. As a result, she was not recognised as the deceased’s spouse under the Intestate Succession Act or as a surviving spouse under the Maintenance of Surviving Spouses Act. Ms Faro petitioned the high court to set aside the order of the Master and to issue an order declaring Muslim marriages valid for purposes of the Marriage Act or, alternatively, an order declaring that the common law definition of marriage be broadened to include Muslim marriages. Justice Rogers upheld the relief relating to the recognition of Ms Faro as a surviving spouse for purposes of the Intestate Succession Act and the Maintenance of Surviving Spouses Act but deferred the adjudication of the constitutional issues until the Minister of Justice and Constitutional Development filed a further affidavit.
Ms Esau, whose matter was the third part of the consolidated application, approached the high court for an interdict to prevent the Government Employees Pension Fund from paying out 50% of her husband, Mr Esau’s, pension interest, pending Ms Esau’s action to recover that portion of the pension interest. She also sought an order declaring that the inability of the state to create laws recognising Muslim marriages discriminated against Muslim women and was thus unconstitutional.
The state parties argued that particular provisions of the Marriage Act and Divorce Act were not inconsistent with the Constitution and that there was no obligation on the state to initiate and pass legislation to recognise and regulate Muslim marriages.
Dramatic turn during the hearing at the Supreme Court of Appeal
Once the matter reached the SCA, the state parties finally conceded, after years of litigation arguing to the contrary, that the Marriage Act and Divorce Act were inconsistent with sections 9, 10, 28, and 34 of the Constitution.
The SCA had to decide on three issues, whether the state had an obligation to bring into operation legislation to recognise and regulate Muslim marriages, whether this was in line with the Constitution, and the retrospectivity of the interim relief, i.e., how far back in time will the order be effective from. The WLCT requested that the court ruling cover Muslim marriages that were validly concluded and subsisted on or after 27 April 1994.
The South African High Court and Supreme Court of Appeal have both ruled that the failure to recognise Muslim marriages in the country infringes on the rights of women and children born of such marriages. This lack of recognition has resulted in children born of Muslim marriages not being provided with the same automatic court supervision and intervention by the Office of the Family Advocate that is afforded to children born of civil or customary unions. This is seen as a violation of Section 28 of the Constitution, which provides for the protection of children and states that the best interests of the child are paramount. The SCA found that the lack of recognition of Muslim marriages resulted in discrimination on the grounds of religion, marital status, and gender. The SCA confirmed that the Marriage and Divorce Act is inconsistent with the Constitution and the common law definition of marriage and referred the declaration of constitutional invalidity to the CC. The SCA did not grant any retrospective effect in terms of the order granted.
Final leg: Constitutional Court of South Africa
It was precisely the lack of retrospective effect that prompted the WLCT (Women’s Legal Centre Trust) to file an appeal with the CC, resulting in a decision on the constitutionality of these long-standing issues. The CC had to resolve three issues: whether the Marriage and Divorce Act’s constitutional invalidity should be affirmed, whether the retrospective effect of this order should be limited and whether the state is obligated to pass legislation recognising and regulating Muslim marriages.
The CC emphasised that just because women in Muslim marriages have the legal option of registering their marriages but choose not to do so does not mean they are less protected than women whose marriages are registered. We frequently find that women in these settings have limited agency to make important decisions like this, and they are typically forced by their husbands and societal norms to abide by whatever decision their spouse makes. As the CC correctly pointed out, this is frequently attributable to a mismatch in negotiating power. Another ramification of this inequity is that, as the WLCT submitted to the CC when assets are acquired during the marriage, they are in the husband’s name. As evidenced in the Faro case, Muslim husbands can obtain a Talᾶq, which is a unilateral divorce, leaving women without adequate marital property safeguards. Advocate Nazreen Bawa SC, arguing for the WLCT, submitted, ‘We are asking the court not to close the door on women. Give them the option to exercise their rights. Without this relief, women, who have historically been deprived, will continue to be deprived.’ Advocates for the President and Justice Minister stated that the state did not believe there was an automatic right or obligation for it to recognise, let alone regulate, marriages in South Africa.
In previous cases dealing with Muslim marriages, one of the reasons why the court did not recognise them was due to the potential for polygamous unions. However, this reasoning may be seen as ironic given that African customary law, which has been recognised in South African law for decades, recognises polygamous unions in various cultural practices through the Recognition of Customary Marriages Act 120 of 1998. This hypocrisy demonstrates how Muslim women and children are not treated equally before the law. As a result, Muslim women in polygamous marriages suffered further discrimination, especially if one of the marriages is terminated civilly, giving one spouse greater legal rights.
As the Court of Appeal emphasised, this case and its decision should not be interpreted as an opinion or indictment of Sharia marital law’s constitutionality, because the question before the court had nothing to do with Sharia marital law’s constitutionality, and the court avoided any doctrinal entanglement, being able to decide the issues before it without doing so. The SCA’s judgement broadening the concept of common law to cover Muslim marriages is a much-needed step towards ensuring that all women have the equal rights guaranteed by the Constitution.
Constitutional Court decision
Parliament has 24 months (from the date of the CC judgement) to amend existing legislation or introduce new legislation to ensure Muslim marriages are recognised as valid marriages for all purposes in South Africa and to regulate the consequences arising from such recognition. It has been almost a year, and it is still not clear that Parliament is actively participating in this process. Although the CC did not extend the interim relief to marriages that existed as of April 27, 1994, which was sought by the WLCT, it did provide some relief. Specifically, the CC extended interim relief to two groups of people: (1) spouses whose marriages existed as of December 15, 2014, which was the date when the legal action was initiated in the high court and (2) spouses who had already terminated their marriages under Sharia law but had pending legal proceedings with recourse to the Divorce Act. This would allow for the just and equitable redistribution of patrimonial assets. The provisions of the Divorce Act so apply to all Muslim marriages, and if they are concluded out of community of property, recourse to section 7(3) of the Divorce Act may be obtained to demand a redistribution. In this regard, spouses in Muslim marriages enjoy the same remedies as spouses in civil marriages. Furthermore, this would also apply to polygamous Muslim marriages, which means that Muslim women who are married in polygamous marriages would no longer be defenceless and would have the same remedies as other spouses. This would help to erase the compounded prejudice that Muslim women in polygamous marriages previously faced.
Where to from here?
Although the CC also directed the Departments of Home Affairs and Justice and Constitutional Development to publish a summary of the court order in newspapers and on radio stations, little has been done in this regard. As far as can be determined, practically little has been done to inform Muslim women about the new remedies that are now available to them.
It is imperative that the significance of this judgment be stressed, and one can only hope that more Muslims, both men and women, become aware of the judgment and its impact on their lives and rights and take action to improve their position. One can further hope that Parliament uses the judgment as a basis to ensure the protections afforded by the CC and does not regress under pressure, as it appears to have done when it previously abandoned the Muslim Marriage Bill, with no regard for the discrimination and suffering experienced by Muslim women and no appreciation for the fact that Muslim children were treated as less important than other children.
Kaamilah Paulse is a director and family law attorney at Herold Gie Attorneys.