Victory for Muslim Marriages in South Africa – Court gives the State 2 (two) years to enact legislation

[Re-post] On 31 August 2018, the Western Cape High Court handed down a ground-breaking judgment. In effect, it Orders the State to prepare, initiate, introduce, enact, and bring into operation, diligently, and without delay, legislation to recognise Muslim marriages. The High Court gave the State exactly two (2) years to attend to the latter process. This two (2) years would only be suspended if the matter is taken to the Constitutional Court. However, should the matter not be taken to the Constitutional Court for final determination, and the State does not enact the legislation, then by default, Muslim marriages may be dissolved in accordance with the Divorce Act 70 of 1979. Therefore, it is up to the State to action matters urgently. Download a Copy of the Judgment by clicking here.

How does this benefit Muslim Marriages?

To understand how the judgment benefits Muslim Marriages, one needs to understand the legal nature of Muslim Marriages in South Africa. Let us refer to the judgment for some insight: In the judgment, the following is stated: “The issues before us concern recognition and regulation of marriages solemnised and celebrated according to the tenets of Islamic (also referred to as ‘Muslim marriages’). It is undisputed that marriages entered into in terms of the tenets of Islam have not been afforded legal recognition for all purposes. The applicants argue that non-recognition and non-regulation of these marriages violates the rights of women and children in particular in these marriages. According to them. the State has failed in its duty of respect, protect promote and fulfil the Bill of’ Rights as required in section 7(2) of the Constitution, in the face of its constitutional and international obligations and that the most effective way of dealing with this systemic violation of rights, is an enactment of statute. This approach. according to the applicants has been postulated by the courts in a number of judgments dealing with issues concerning Muslim marriages before.”

What is the current state of Muslim Marriages?

Unfortunately, until the Muslim Marriages Act comes into operation, Muslim Marriages are not valid marriages in terms of South African Law. The consequences are however enforceable. For example, spousal support, succession, contracts etc. However, a Muslim spouse cannot get a divorce in terms of the Divorce Act, or make use of certain legislation as in the case of civil marriages. If a party is married in terms of civil law, he or she must approach a court of law for a valid divorce. That, unfortunately, does not apply to Muslim Marriages. Therefore, the Judgement is welcomed.

The Judgment Order

To get a better understanding of what the order of the court was, you can read it below. Feel free to leave your comments below. Order [252] In the result. the following orders are proposed: 1 . It is declared that the State is obliged by section 7(2) of the Constitution to respect, protect, promote and fulfil the rights in sections 9, 10, 15. 28, 31 and 34 of the Constitution by preparing, initiating. introducing, enacting and bringing into operation. diligently and without delay as required by section 237 of the Constitution, 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. 2. It is declared that the President and the Cabinet have failed to fulfil their respective constitutional obligations as stipulated in paragraph 1 above and such conduct is invalid. 3. The President and Cabinet together with Parliament are directed to rectify the failure within 24 months of the date of this order as contemplated in paragraph 1 above. 4. In the event that the contemplated legislation is referred to the Constitutional Court by the President in terms of section 79(4)(b) of the Constitution, or is referred by members of the National Assembly in terms of section 80 of the Constitution, the relevant deadline will be suspended pending the final determination of the matter by the Constitutional Court: 5. In the event that legislation as contemplated in paragraph 1 above is not enacted within 24 months from the date of this order or such later date as contemplated in paragraph 4 above, and until such time as the coming into force thereafter of such contemplated legislation, the following order shall come into effect: 5.1 It is declared that a union validly concluded as a marriage in terms of Sharia law and which subsists at the time this order becomes operative, may (even after its dissolution in terms of Sharia Law) be dissolved in accordance with the Divorce Act 79 of 1979 and all the provisions of the Act shall be applicable, provided that the provisions of section 7(3) shall apply to such a union regardless of when it was concluded: and 5.2 In the case of a husband who is a spouse in more than one Muslim marriage, the court shall: (a) take into consideration all relevant factors including any contract or agreement and must male any equitable order that it deems just; and (b) may order that any person who in the court’s opinion has a sufficient interest in the matter be joined in the proceedings. 5.3 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. 5.4 The Department of Home Affairs and the Department of Justice shall publish a summary of the orders in paragraphs 5.1 to 5.2 above widely in newspapers and on radio stations, whatever is feasible, without unreasonable delay. 6. An order directing the Minister of Justice to put in place policies and procedures regulating the holding of enquiries by the master of the High Court into the validity of marriages solemnised in accordance with the tenets of Islamic law is refused. 7. An order declaring the pro forma marriage contract attached as annexure “A” to the Women’s Legal Centre Trust’s founding affidavit, to be contrary to public policy is refused. 8. In respect of matters under case numbers 22481/2014 and 4406/2013, the president, the Minister of Justice and the Minister of Home Affairs are to pay the costs of the Women’s Legal Centre Trust respectively, such costs to include costs of three counsel to the extent of their employment. 9. In respect of the matter under case number 13877/2015: 9.1 Ruwayda Esau’s claim to a part of the Mogamat Riethaw estate, if any. is postponed for hearing at trial along with Parts B and E, of the particulars of claim. 9.2 The Cabinet and the Minister of justice shall pay Ruwayda Esau’s costs in respect of Claim A, such costs to include costs of two counsel to the extent of their employment. Download a Copy of the Judgment by clicking here. Feel free to leave your comments below.

Posted on 11 February 2025 by Telelaw

Victory for Muslim Marriages in South Africa – Court gives the State 2 (two) years to enact legislation

[Re-post]

On 31 August 2018, the Western Cape High Court handed down a ground-breaking judgment. In effect, it Orders the State to prepare, initiate, introduce, enact, and bring into operation, diligently, and without delay, legislation to recognise Muslim marriages. The High Court gave the State exactly two (2) years to attend to the latter process. This two (2) years would only be suspended if the matter is taken to the Constitutional Court. However, should the matter not be taken to the Constitutional Court for final determination, and the State does not enact the legislation, then by default, Muslim marriages may be dissolved in accordance with the Divorce Act 70 of 1979. Therefore, it is up to the State to action matters urgently.

Download a Copy of the Judgment by clicking here.

How does this benefit Muslim Marriages?

To understand how the judgment benefits Muslim Marriages, one needs to understand the legal nature of Muslim Marriages in South Africa. Let us refer to the judgment for some insight:

In the judgment, the following is stated:

“The issues before us concern recognition and regulation of marriages solemnised and celebrated according to the tenets of Islamic (also referred to as ‘Muslim marriages’). It is undisputed that marriages entered into in terms of the tenets of Islam have not been afforded legal recognition for all purposes. The applicants argue that non-recognition and non-regulation of these marriages violates the rights of women and children in particular in these marriages. According to them. the State has failed in its duty of respect, protect promote and fulfil the Bill of’ Rights as required in section 7(2) of the Constitution, in the face of its constitutional and international obligations and that the most effective way of dealing with this systemic violation of rights, is an enactment of statute. This approach. according to the applicants has been postulated by the courts in a number of judgments dealing with issues concerning Muslim marriages before.”

What is the current state of Muslim Marriages?

The Judgment Order

To get a better understanding of what the order of the court was, you can read it below.

Feel free to leave your comments below.

Order
[252] In the result. the following orders are proposed:
1 . It is declared that the State is obliged by section 7(2) of the Constitution to respect, protect, promote and fulfil the rights in sections 9, 10, 15. 28, 31 and 34 of the Constitution by preparing, initiating. introducing, enacting and bringing into operation. diligently and without delay as required by section 237 of the
Constitution, 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.
2. It is declared that the President and the Cabinet have failed to fulfil their respective constitutional obligations as stipulated in paragraph 1 above and such conduct is invalid.
3. The President and Cabinet together with Parliament are directed to rectify the failure within 24 months of the date of this order as contemplated in paragraph 1 above.
4. In the event that the contemplated legislation is referred to the Constitutional Court by the President in terms of section 79(4)(b) of the Constitution, or is
referred by members of the National Assembly in terms of section 80 of the Constitution, the relevant deadline will be suspended pending the final determination of the matter by the Constitutional Court:
5. In the event that legislation as contemplated in paragraph 1 above is not enacted within 24 months from the date of this order or such later date as contemplated in paragraph 4 above, and until such time as the coming into force thereafter of such contemplated legislation, the following order shall come into effect:
5.1 It is declared that a union validly concluded as a marriage in terms of Sharia law and which subsists at the time this order becomes operative, may (even after its dissolution in terms of Sharia Law) be dissolved in accordance with the Divorce Act 79 of 1979 and all the provisions of the Act shall be applicable, provided that the provisions of section 7(3) shall apply to such a union regardless of when it was concluded: and
5.2 In the case of a husband who is a spouse in more than one Muslim marriage, the court shall:
(a) take into consideration all relevant factors including any
contract or agreement and must male any equitable order that it
deems just; and
(b) may order that any person who in the court’s opinion has a sufficient interest in the matter be joined in the proceedings.
5.3 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.
5.4 The Department of Home Affairs and the Department of Justice shall publish a summary of the orders in paragraphs 5.1 to 5.2 above widely in newspapers and on radio stations, whatever is feasible, without unreasonable delay.
6. An order directing the Minister of Justice to put in place policies and procedures regulating the holding of enquiries by the master of the High Court into the validity of marriages solemnised in accordance with the tenets of Islamic law is refused.
7. An order declaring the pro forma marriage contract attached as annexure “A” to
the Women’s Legal Centre Trust’s founding affidavit, to be contrary to public policy is refused.
8. In respect of matters under case numbers 22481/2014 and 4406/2013, the president, the Minister of Justice and the Minister of Home Affairs are to pay the costs of the Women’s Legal Centre Trust respectively, such costs to include costs of three counsel to the extent of their employment.
9. In respect of the matter under case number 13877/2015:

9.1 Ruwayda Esau’s claim to a part of the Mogamat Riethaw estate, if any. is postponed for hearing at trial along with Parts B and E, of the particulars of claim.
9.2 The Cabinet and the Minister of justice shall pay Ruwayda Esau’s costs in respect of Claim A, such costs to include costs of two counsel to the extent of their employment.

Download a Copy of the Judgment by clicking here.

Feel free to leave your comments below.

My Child was born out of wedlock: Her mother will not consent to her surname change and for me to be registered as her biological father. What can I do?
It often happens that a child is registered at the Department of Home Affairs with the mother’s surname, and later the father wants the child to have his surname. The opposite is also true. This is when the child has the father’s surname, and the mother wants her to have her surname. This often happens in cases of children born out of wedlock, or in cases where the parents are divorced. So, what can a parent do to change the child’s surname? Read on to find out the answers below. Then there is the other scenario where the details of the father are not provided when registering the child with the Department of Home Affairs. One reason for this could be that the mother is not certain who the father is, or just does not want him to be associated with the child. Either way, that section of the child’s birth registration is left blank. Now, what can such a father, or child do under such a situation? We approached Advocate Muhammad Abduroaf, a Family Law Expert for some advice on this issue. Read on if you want to know more. [caption id="attachment_2957" align="alignleft" width="200"] Consult with us, click here.[/caption]

What is a surname?

A surname connects you to your family, ancestors and heritage. On a rare occasion, your last name can be an omen that you carry with you for the rest of your life. Each parent would prefer to have their offspring have their family name to connect their child to them. But sometimes, getting it right can be a challenge, especially if the child’s parents are not married and do not share the same surname. You may find the following articles interesting:

Most people get married, and the wife usually changes her surname to that of her husband, or have what they call a “double-barrel” surname. If that is the case, then their offspring would have their last name. Should the child walk down the street past a neighbour, and a neighbour asks the child her surname, through that they would be able to assume where the child lives, and who her parents are etc. Depending on the neighbourhood, the child’s great-grandparents would also be able to be identified. For some, having the same surname as your parents can be less important, but mostly not.

What does the law say about changing a minor child’s surname?

A child must have the surname of one of his or her parents. If the child was born out of wedlock, the child will have the surname of the mother, unless the father consent to the use of his surname. According to the Births and Deaths Registration Act 51 of 1992 a “child born out of wedlock” “does not include a child whose parents were married to each other at the time of his or her conception or at any time thereafter before the completion of his or her birth”. We are going to look at two issues in this legal article. The first is that of the amendment of the birth registration of children born out of wedlock. In other words, correcting the records to reflect the biological father, as the father. It is possible for the change of a surname of a child born within marriage; however, this article will not be dealing with that. The other issue we shall look at is how can a surname change be done. This would be of use to fathers who never married the mother.

Where are the father’s details found?

It may come to the surprise of the father to find out that he is not registered as the father of his child at the Department of Home Affairs. When he finds this out, the first thing he may do is speak to a lawyer or do some research. Either route will take him to the relevant legislation, in this case, the Births and Deaths Registration Act 51 of 1992. The Act is a long and crafty piece of legislation. We shall however only deal with the relevant sections for this legal piece.

Section 11 of the Births and Deaths Registration Act 51 of 1992

Section 11 of the Births and Deaths Registration Act 51 of 1992 deals with the amendment of birth registration of a child born out of wedlock. An extract of the Act is as follows:

Amendment of birth registration of child born out of wedlock

(1) Any parent of a child born out of wedlock whose parents married each other after the registration of his or her birth, may, if such child is a minor, or such child himself or herself may, if he or she is of age, apply in the prescribed manner to the Director-General to amend the registration of his or her birth as if his or her parents were married to each other at the time of his or her birth, and thereupon the Director-General shall, if satisfied that the applicant is competent to make the application, that the alleged parents of the child are in fact his or her parents and that they legally married each other, amend the registration of birth in the prescribed manner as if such child’s parents were legally married to each other at the time of his or her birth. (2) If the parents of a child born out of wedlock marry each other before notice of his or her birth is given, notice of such birth shall be given and the birth registered as if the parents were married to each other at the time of his or her birth. (3) … (4) A person who wishes to acknowledge himself to be the father of a child born out of wedlock, may, in the prescribed manner, with the consent of the mother of the child, apply to the Director-General, who shall amend the registration of the birth of such child by recording such acknowledgement and by entering the prescribed particulars of such person in the registration of the birth of such child. (4A) An amendment of the particulars of a person who has acknowledged himself as a father of a child as contemplated in subsection (4) and section 10(1)(b) of the Act shall be supported by the prescribed conclusive proof of that person being the father of the child. (5) Where the mother of a child has not given her consent to the amendment of the registration of the birth of her child in terms of subsection (4), the father of such a child shall apply to the High Court of competent jurisdiction for a declaratory order which confirms his or her paternity of the child and dispenses with the requirement of consent of the mother contemplated in subsection (4). (6) When the court considers the application contemplated in subsection (5) the provisions of section 26(b) of the Children’s Act shall apply. In short, the sections say … The above sections are self-explanatory. They deal with the situation where a change is made in relation to the marital status of the parent and for the inclusion of the father in the records. What is important to note is that the records can be changed after the parent married each other, and by the child when he or she turns 18. Furthermore, even if the mother refuses to give consent, the father can apply to the Court to dispense with the mother’s consent. Section 26(b) of the Children’s Act deals with persons who apply to Court to confirm paternity. As can be seen from the above, the law allows for a change in the birth registration regarding the marital status of a child’s parents in relation to the specific child, as well as the identity of the child’s father. According to the regulations of the Births and Deaths Registration Act 51 of 1992, both parents must complete Form BI-1682 and submit it to any domestic Home Affairs office under normal circumstances. Otherwise, a Court order is required.

Alteration or Change to a minor child’s surname

Now we move onto the aspect of the alteration of the surname of the minor child. Unlike the amendment of the records to reflect the marital status of the parents, or identity of the father of the minor child in the record, where we are dealing with factual issues; changing a surname, can have greater issues. In other words, a mother would not have much of a foot to stand on in refusing a father the right to have the records reflect him as a father. However, when it comes to a parent refusing a surname change, things are not that simple. This is where a child’s best interests have to be looked at. At the outset, one can assume that litigation could become inevitable. The relevant section to look at is section 25 of the Births and Deaths Registration Act 51 of 1992. An extract of the Act is as follows:

Alteration of surname of minor

(1) When – (a) the birth of any minor born out of wedlock has been registered and the mother of that minor marries any person other than the natural father of the minor; (b) the father of any minor is deceased or his or her parents’ marriage has been dissolved and his or her mother remarries or his or her mother as a widow or divorcee resumes a surname which she bore at any prior time and the father, where the marriage has been dissolved, consents thereto in writing, unless a competent court grants exemption from such consent; (c) the birth of any minor born out of wedlock has been registered under the surname of his or her natural father and the natural father consents thereto in writing, unless a competent court grants exemption from such consent; or (d) a minor is in the care of a guardian, his or her mother or his or her guardian, as the case may be, may apply to the Director-General for the alteration of his or her surname to the surname of his or her mother, or the surname which his or her mother has resumed, or the surname of his or her guardian, as the case may be, and the Director-General may alter the registration of birth of that minor accordingly in the prescribed manner: Provided that the man who married the mother of a minor mentioned in paragraph (a) or (b), shall grant written consent for the alteration. (1A) Notwithstanding subsection (1)(b) and (c), the natural father’s written consent is not required where the mother has sole guardianship of the child concerned. (2) Any parent of a minor whose birth has been included under a specific surname in the population register, may on the strength of a reason not mentioned in subsection (1), apply in the prescribed manner to the Director-General for the alteration of the surname of the minor under which his or her birth was registered, and the Director-General may, on submission of a good and sufficient reason given for the contemplated alteration of the surname, alter the said original surname accordingly in the prescribed manner. (3) For the purposes of this section “guardian” includes any person who has in law or in fact the custody or control of a minor. Section 25 is quite self-explanatory. For the purpose of this article, section 25(2) is of relevance. What is important to also note is that if a parent does not consent to the surname change application, the Court can give such consent to such an application or dispense with the refusing parent’s consent. Under all circumstances, the child’s best interests would be looked at when considering such a court application. Below are some examples of good reasons, and not so good reasons for such an Application:

Good reasons for the surname change of a minor child

One good reason would be that the minor child always used the surname of the father, but has not been registered with his surname. There are always problems that occurs due to the parent having a different surname than the child. The father is caring for the child and/or the child primarily lives with him.

Unsound reasons for a surname change of a minor child

On the basis that the child should have the fathers surname in principle. He was never involved in the child’s life but now wants a surname change. The sole reason for the change is that he is paying child support. The child visits him during the holidays.

Final words to parents of children born out of wedlock

If a child was born out of wedlock, it is recommended that the father’s details be included in the registration. If the parties are intending to live together as life partners, and not get married, they need to discuss the aspect of whose surname the child will have. This will have a huge impact on the child’s life in the future. If they cannot come to an agreement on the surname, it would be best to take the issue on mediation. We wish all parents the best in the parenting of their child. Remember, a child cannot choose his or her surname at birth, let alone his or her parents. But you as parents have the choice to make the right decisions for the sake of the future happiness of your child.

Have a family Law appointment with us

We have an online appointments system which enables you to save valuable time and cut straight to the chase. There is, therefore, no need for you to visit our offices (unless it is best for you to do so, or is your most preferred option). You may set up telephonic or video consultations should you wish to do so. You can, therefore, stay in the office or on the couch in the comfort of your own home when dealing with us. We are therefore physical, online, set-up and ready to meet with you. Make your appointment online for a consultation today. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. Should you require any other legal services and advice, not related to family law, visit Private Legal. Or click here for the details of Cape Town Advocate, Muhammad Abduroaf or this advocate link to learn more. [caption id="attachment_5070" align="alignleft" width="300"] Advocate of the High Court of South Africa

Advocate Muhammad Abduroaf[/caption] Visit our child custody and maintenance site for additional information.

Post a family law question on:

If you have a question on any of the topics mentioned in the links above, go ahead and click on it, and post your question.

Free Family Law Resources

If you require any of the following free resources, feel free to order them.

If you are in search of family law articles, view some of them below.

Child Maintenance

Child Custody

Divorce & Property

Domestic Violence

Frequently asked questions

To find out a little more about our legal expertise, feel free to click on some of legal resources:

Posted on 11 February 2025 by Telelaw

Victory for Muslim Marriages in South Africa – Court gives the State 2 (two) years to enact legislation

How does this benefit Muslim Marriages?

What is the current state of Muslim Marriages?

The Judgment Order

Related Post

Do you require a video legal advice consultation?