The Act provides legal protection for Muslim women, something which was lacking under the previous legislation. It now also recognises the economic and social contributions made by women to the marriage.
by AYESHA ROYKER
IN December 2014, the Women’s Legal Centre Trust (WLCT) launched an application in the Western Cape High court relating to the recognition and regulation of Muslim marriages which was aimed at assisting Muslim women who, for decades, had been unable to initiate litigation themselves or faced disadvantages due to the non-recognition of their Muslim marriage. The WLCT asked that the Marriage Act and certain sections of the Divorce Act be declared unconstitutional as they did not extend to marriages concluded in terms of Islam.
The High Court found that the President and Cabinet’s failure to enact legislation to recognise and regulate Muslim marriages meant that they had failed to fulfil their obligations in terms of the Constitution. The order was retrospective and applied to all marriages which subsisted at the date of the High Court’s order, being August 2018.
As this was a case of constitutional significance, in 2022 the Constitutional Court rendered its judgment in the matter of the Women’s Legal Centre Trust vs President of the Republic of South Africa 2022 (5) SA 323 (CC), and confirmed that the Marriages Act and sections 6 and 7(3) of the Divorce Act were unconstitutional for failing to recognise Muslim marriages. The state was ordered to amend existing legislation or enact new legislation within 24 months, and pending the amendments or enacting of new legislation, the Divorce Act would apply to Muslim marriages.
Piecemeal amendments
The Constitutional Court had previously come to the aid of Muslim women in matters relating to inheritance. Some of the landmark cases include Daniels vs Campbell and the Hassam cases. The legislature, on those occasions, amended the Intestate Succession Act to include Muslim marriages, allowing Muslim spouses to claim from their deceased spouse’s estate in monogamous and polygamous marriages.
These incremental developments recognised that Muslim women were not being afforded protection, remained vulnerable in terms of the law and were being forced to approach the court individually and at great cost. The glaring need for an overarching legislation was evident, especially for divorced women who are often left out.
The Divorce Amendment Act
On May 9, 2024 President Cyril Ramaphosa signed into law the Divorce Amendment Act, which is an important step towards ensuring that Muslim women can initiate divorce proceedings in civil courts. In terms of the new legislation, they no longer have to wait for religious bodies to declare a divorce but can approach the courts directly should they feel that their marriage has broken down irretrievably and the court can provide the protection which the religious bodies are unable to enforce.
The new Act provides for a definition of Muslim marriage and includes other religious marriages, with the default position for Muslim marriages being out of community without the accrual system. The Act provides for Muslim spouses to claim for an equitable redistribution of assets upon divorce and allows for the forfeiture of patrimonial benefits. The court is now empowered to assess, based on the facts of each case, what is just and equitable in respect of assets which have been acquired during the marriage.
What does this mean for you?
For far too long, women have remained in abusive marriages and have struggled to find a just, fair, kind and equitable exit from marriages which have irretrievably broken down, because they are economically forced to stay.
The Act addresses the historical and ongoing discrimination faced by Muslim women and enables our courts to intervene in Muslim divorce matters and provide women in particular, with recourse when seeking maintenance and their right to the just and equitable redistribution of assets. This amendment is especially valuable when the Muslim judicial bodies or husbands have failed to ensure the divorce rights of Muslim women, particularly rehabilitative maintenance.
The Act provides legal protection for Muslim women, something which was lacking under the previous legislation. It now also recognises the economic and social contributions made by women to the marriage.
It effectively reads Muslim marriage into sections 6 and 7 (3) of the Divorce Act, protecting and safeguarding the interests of children born from Muslim marriages as it extends the right to claim maintenance.
It needs to be highlighted that this Divorce Amendment Act only relates to divorce proceedings. There are still ongoing discussions regarding the Marriages Act which recognises and regulates marriages as the State has requested an extension to when the new law is to be enacted by a further 24 months, effectively moving the date to June 27, 2026, by which the new or amended law must be enacted.
Concerns
There is a perception among the Muslim community that the court is not the place to get a divorce. There may be reluctance to approach the court for protection as there is likely to be a stigma attached when approaching the court as opposed to an Imam.
Unfortunately, not all Muslim women will be able to benefit from the Divorce Amendment Act as the Act only applies to those women who have had their marriages terminated religiously and who have been unable to finalise legal proceedings as of December 15, 2014. What this means is that you must have been married or issued with a talaq or faskh on or after December 15, 2014 in order for the provisions of the new Act to apply.
At date of writing this article the recognised Islamic bodies have been silent about this amendment despite the great protection it would afford the vulnerable women which they assist.
Conclusion
The Divorce Amendment Act addresses the decades long discrimination faced by divorced Muslim women and children and provides a legal framework for Muslim spouses to rely on in the event of divorce.
With the current new legislation, the upcoming amendment to the Marriages Act and access to information, women are now better positioned to make informed decisions on the consequences of marriage before entering into marriage.
