18 December 2020
MUSLIM MARRIAGES: NOW AND THE YEAR 2022
President of the RSA and Another v Womens Legal Centre Trust and Others; Minister of Justice and Constitutional Development v Faro and Others; and Minister of Justice and Constitutional Development v Esau and Others (612/19)  ZASCA 177 (18 December 2020)
In an important judgment handed down by the Supreme Court of Appeal in December 2020, it was acknowledged that our law’s treatment of the religious marriages concluded in terms of Shariah law has many negative consequences for spouses and children in those marriages. Declaring this to be unconstitutional, the Court ordered Parliament to come up with amended or new legislation before the end of 2022, and made interim provisions to assist spouses in such marriages with immediate effect. It is important to take note of these, especially where such spouses are parties to contracts or seeking a divorce.
SUMMARY OF THE JUDGMENT
The recognition of marriages solemnised according to the tenets of the Islamic faith (Muslim marriages) by our civil laws has long been contentious. Muslim marriages have never been recognised nor regulated by South African law as valid marriages despite 26 years under a democratic constitutional dispensation that is founded, inter alia, on the values of ‘[h]uman dignity, the achievement of equality and the advancement of human rights and freedoms’. This is, understandably, both an emotive and contentious issue. The views held in the pre-constitutional era by the South African courts reflect a refusal to recognise Muslim marriages, mainly because these marriages were viewed as potentially polygynous, and thus contra bonos mores (i.e., against good morals). (Muslim partners could achieve “civil law marriage” status in respect of their marriages if they concluded, in addition to the religious marriage, also a civil marriage before a marriage officer.)
The plight of Muslim women and children and the injustices suffered by them as a result of the absence of legal recognition of Muslim marriages are problematic. For instance, those who do not also have a civil marriage (in addition to the religious marriage) continue to be regarded as unmarried. When they die, their death certificates reflect that they were never married. This confirms that their spousal relationship had no legal significance. Upon divorce, they have no access to provisions that exist in our divorce legislation, as these provisions only apply in respect of persons seeking a divorce in a civil law marriage. Similarly, such spouses’ rights to inherit under our intestate succession laws, to claim maintenance when a spouse passed under the Maintenance of Surviving Spouses Act, were often unavailable to spouses married in terms of Muslim religious laws, because they were not married according to civil laws.
Thus, by not affording legal recognition to religious marriages, the rights of spouses in these marriages to equal treatment and protection of the law are undermined.
Discussion and outcome
This issue was taken to court by the Women’s Legal Centre, on behalf of its clients. It was argued and agreed that the Constitution places an obligation on the State to prepare, initiate, introduce and bring into operation legislation to recognise Muslim marriages as valid marriages and to regulate the consequences of such recognition. An order was therefore handed down requiring, amongst other things, that within the next 24 months, government procures measures by way of new or amended legislation, to provide for recognition of marriages concluded under Sharia law as civil marriages.
In the meantime, will the judgment have retrospective effect?
No, the Court noted that it is the prerogative of Parliament to determine if and to what extent the legislation that it enacts regarding Muslim marriages should apply retrospectively.
Rather, the Court issued an order which endeavours to cure the hardship suffered by parties to Muslim marriages, especially vulnerable women and children, that will operate until appropriate legislation is put in place, as follows:
- The Marriage Act 25 of 1961 (the Marriage Act) and the Divorce Act 70 of 1979 (the Divorce Act) are declared to be inconsistent with the Constitution in that they fail to recognise marriages solemnised in accordance with Sharia law (Muslim marriages) as valid marriages (i.e. marriages that are registered as civil marriages)
- Section 6 of the Divorce Act is declared unconstitutional because it fails to provide for mechanisms to safeguard the welfare of minor/dependent children of Muslim marriages at the time of dissolution of the Muslim marriage in the same way as it provides mechanisms to safeguard the welfare of minor/dependent children of other (civil law) marriages that are being dissolved. (Section 6 deals with the safeguarding of interests of dependent and minor children and provides that a decree of divorce shall not be granted until the court
(a) is satisfied that the provisions made or contemplated with regard to the welfare of any minor or dependent child of the marriage are satisfactory or are the best that can be effected in the circumstances; and
(b) if and enquiry is instituted by the “Family Advocate… has considered the report and recommendations ….”)
- Section 7(3) of the Divorce Act is declared unconstitutional as it fails to provide for the redistribution of assets, on the dissolution of a Muslim marriage, when such redistribution would be just. (Section 7(3)(3) allows a court granting a decree of divorce in respect of a (civil law) marriage out of community of property, on application by one spouse and in the absence of any agreement between the spouses regarding the division
of their assets, to order that such assets, or parts thereof, be transferred to the applicant spouse as the court deems fit.)
- Section 9(1) of the Divorce Act is inconsistent with 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 way as it does in respect of other (civil law) marriages. (Section 9 provides for forfeiture of patrimonial benefits of marriage and allows a court to make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, if the court, having regard to the duration of the marriage, the circumstances which gave rise to the break-down thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefited.)
- The above declarations of invalidity 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 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.
In addition, pending the coming into force of legislation or amendments to existing legislation:
1. A union, validly concluded as a marriage in terms of Sharia law and subsisting at the date of the order of the Supreme Court of Appeal (18 December 2020), or, which has been terminated in terms of Sharia law, but in respect of which legal proceedings have been instituted and which proceedings have not been finally determined as at 18 December 2020, 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 s 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 shall:
i. take into consideration all relevant factors including any contract or agreement 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.
2. As from 18 December 2020, section 12(2) of the Children’s Act 38 of 2005 applies to Muslim marriages concluded after the date of this order. (Section 12(2) provides that a child (a) below the minimum age set by law for a valid marriage may not be given out in marriage or engagement; and (b) above that minimum age may not be given out in marriage or engagement without his or her consent.)
3. As necessary the provisions of the Recognition of Customary Marriages Act 120 of 1998 shall apply to Muslim marriages.
4. 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.
The Judgment can be viewed here: