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What is the Status of Muslim Marriage in South Africa?
Women’s Legal Centre Trust v President of the Republic of South Africa and Others (CCT 24/21) [2022] ZACC 23; 2022 (5) SA 323 (CC); 2023 (1) BCLR 80 (CC) (28 June 2022)
In the case of Women’s Legal Centre Trust v President of the Republic of South Africa and Others (CCT 24/21) [2022] ZACC 23; 2022 (5) SA 323 (CC); 2023 (1) BCLR 80 (CC) (28 June 2022), the Constitutional Court deal with an issue relating to Muslim Marriage. The parties in the case where the following:WOMEN’S LEGAL CENTRE TRUST Applicant
and
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA First Respondent
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT Second Respondent
MINISTER OF HOME AFFAIRS Third Respondent
SPEAKER OF THE NATIONAL ASSEMBLY Fourth Respondent
CHAIRPERSON OF THE NATIONAL COUNCIL
OF PROVINCES Fifth Respondent
SOUTH AFRICAN HUMAN RIGHTS COMMISSION Sixth Respondent
COMMISSION FOR THE PROMOTION AND PROTECTION
OF THE RIGHTS OF CULTURAL, RELIGIOUS
AND LINGUISTIC COMMUNITIES Seventh Respondent
LAJNATUN NISAA-IL MUSLIMAAT (ASSOCIATION
OF MUSLIM WOMEN OF SOUTH AFRICA) Eighth Respondent
and
COMMISSION FOR GENDER EQUALITY Intervening Party
and
MUSLIM ASSEMBLY CAPE First Amicus Curiae
UNITED ULAMA COUNCIL OF SOUTH AFRICA Second Amicus Curiae
The Constitutional Court gave the following ruling:
“On application for confirmation of an order of constitutional invalidity granted by the Supreme Court of Appeal: 1. The Supreme Court of Appeal’s order of constitutional invalidity is confirmed: 1.1. The Marriage Act 25 of 1961 (Marriage Act) and the Divorce Act 70 of 1979 (Divorce Act) are declared to be inconsistent with sections 9, 10, 28 and 34 of the Constitution in that 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 to regulate the consequences of such recognition. 1.2. It is declared that section 6 of the Divorce Act is inconsistent with sections 9, 10, 28(2) and 34 of the Constitution, 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 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. 1.3. It is declared that section 7(3) of the Divorce Act is inconsistent with sections 9, 10, and 34 of the Constitution, insofar as it fails to provide for the redistribution of assets, on the dissolution of a Muslim marriage, when such redistribution would be just. 1.4. It is declared that section 9(1) of the Divorce Act is inconsistent with sections 9, 10 and 34 of the Constitution, 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 or similar terms as it does in respect of other marriages that are dissolved. 1.5. The common law definition of marriage is declared to be inconsistent with the Constitution and invalid to the extent that it excludes Muslim marriages. 1.6. The declarations of invalidity in paragraphs 1.1 to 1.5 above are suspended for a period of 24 months to enable the President and Cabinet, together with Parliament, to remedy the foregoing defects by either amending existing legislation, or initiating and passing new legislation within 24 months, in order to ensure the recognition of Muslim marriages as valid marriages for all purposes in South Africa and to regulate the consequences arising from such recognition. 1.7. Pending the coming into force of legislation or amendments to existing legislation referred to in paragraph 1.6, it is declared that Muslim marriages subsisting at 15 December 2014, being the date when this action was instituted in the High Court, 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, 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 section 7(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: (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; 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. 1.8. Pending the coming into force of legislation or amendments to existing legislation referred to in paragraph 1.6, it is declared that, from the date of this order, section 12(2) of the Children’s Act 38 of 2005 applies to a prospective spouse in a Muslim marriage concluded after the date of this order. 1.9. Pending the coming into force of legislation or amendments to existing legislation referred to in paragraph 1.6, for the purpose of paragraph 1.8 above, the provisions of 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 apply, mutatis mutandis, to Muslim marriages. 1.10. If administrative or practical problems arise in the implementation of this order, any interested person may approach this Court for a variation of this order. 1.11. The Department of Home Affairs and the Department of Justice and Constitutional Development shall publish a summary of the orders in paragraphs 1.1 to 1.10 above widely in newspapers and on radio stations, whichever is feasible, without delay. 2. The conditional cross appeal by the Women’s Legal Centre Trust, and the appeals by the South African Human Rights Commission and Commission for Gender Equality are dismissed. 3. The President and the Minister of Justice and Constitutional Development must pay the Women’s Legal Centre Trust’s costs of this application, including the costs of two counsel.”Status of Muslim Marriages in South Africa
Considering the latter judgment, Muslim Marriages are seen as valid marriages. However, the South African legal framework needs to be changed to allow for its incorporation.
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[embed]https://youtu.be/6OFqAsq8HUE[/embed] Questions posed when registering on www.ourlawyer.co.za/live Question 1: GautengWhat is the procedure to dispute child maintenance because I am not happy with the maintenance officer’s ruling I want to take the matter back to court for formal enquiry in front of the magistrate?
I have 3 minor kids aged 118 & 6. I have a bond paying 6000 – the officer said I can’t claim for accommodation which I was not happy with because we are not staying for free. Grocery of R3200 electricity R900 municipal water rates and taxes R1200. Domestic Worker 2500 school fees R3030 school transport R1800 medical aid 3060 uniform clothes twice a year. Stationery. House maintenance household expenditure. I want to dispute the order because the officer was baised. The officer told me that I can’t claim for accommodation because its my bond so it’s my problem. The officer said the domestic Worker work at my house. Worst part none of our documents were scrutinised. I felt so frustrated angry and helpless. The officer decided that the father will pay for school fees school transport stationery school uniform and clothes twice a year. I am still doing more and I am earning way less that the father. Atleast is the matter can be taken back for formal enquiry so that they can look at our income expenses and then child’s need. The office took out lots of things from my claim. Accommodation electricity water and rates grocery domestic Worker medical aid and all other expenses household and house maintenance are on me. I want court to re look at this. Please advise me frustrated mother. Question 2: Gauteng My maintenance file spans from December 2010 when I opened a case against my ex-husband at the Randburg Magistrates Court. It is a long involved saga. We tried subeponas a couple of garnishees section 31 section 10 an attachment orderand still he just avoids pays what he feels like if he feels like moves jobs works as a consultant tries to hide his businesses and who he is working with and for. The case started in Randburg then transfered to Pietermaritzburg when we moved there and now is back at the Randburg Courts. I have finally managed to trace his details but feel so despondent because it feels like we are going to just continue in the fight and it will be fruitless. I have 3 children who have suffered through this and I am needing to ask if there is any hope. He is a smooth talker and manages to smooth talk his way through court proceedings even when he doesnt bring his financials. I suspect too that his life partner is also behind hiding financials as she is a financial accountant and has been on scene since the beginning. Not sure where to turn to or how to begin again. Question 3: Gauteng Am i entitled to claim back maintenance? Question 4: KwaZulu-Natal I do not require legal advice. I want to attend the session as I intend to proceed with pupillage in the near future and this is one of the facets that I have a keen interest in. I would like the opportunity to attend this session to gain more knowledge on the topic and to understand how to handle problems of this nature. Question 5: Gauteng I have twin girls turning 15 this Month. their Father had been paying R2500 maintenance for the last 3 years and 1 school fees and helps with School clothes for 1 child – he is supposed to buy them clothing for when he has them for holidays which hasn’t been done over 2 years – I barely can afford to buy them clothing and this holiday I am sending them to him with no much clothing so he is forced to buy for them while they there. He was supposed to get the girls a medical aid which never happened. They have it now because my Job gave that to me as a perk (which I am very grateful for) . My Salary without his maintenance after debt and deductions is only +/- R5000 which I have to buy food/electricity/fuel for my car/pay School Fees. I have asked him to increase it and I am not asking for a ridiculous amount of money but he hasn’t budged. The girls have needs and I feel he needs to play a bigger financial roll then he is. He is married with 2 other children. Beginning of this year he started working overseas. He comes back for 3 Months and goes back. I want to know if he isn’t in the country could his wife be summoned to court on behalf of him? Thank you. Question 6: Gauteng I have a maintenance case we attend our first date than he said I need DNA to make sure that the kids yours DNA date was on 26 of October 2021 I go to court when I drive I found this guy send doctor letter he said I tested positive for COVID 19 but he come to sign our ob book Maintenance court is gonna help me
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