The Women’s Legal Centre had expressed concern over the hardship faced by Muslim women in a Muslim marriage as a result of their exclusion from the Marriage Act and the Divorce Act. Photo by Maahid Photos/Pexels
Cape Town - The Women’s Legal Centre (WLC) celebrated what it referred to as a victory for Muslim women and children of Muslim marriages, who are now legally recognised after President Cyril Ramaphosa signed into law the Divorce Amendment Bill.
This after the WLC filed an application at the Constitutional Court to legally recognise Muslim marriages.
The organisation had expressed concern over the hardship faced by Muslim women in a Muslim marriage as a result of their exclusion from the Marriage Act and the Divorce Act.
The Constitutional Court in June 2022 declared the Marriage Act of 1961 and the Divorce Act of 1979 inconsistent with sections of the Constitution in that they failed to recognise marriages that were performed according to Shariah law (Islamic law) and which have not been registered as civil marriages, leaving these women and children bereft of statutory protection within the South African legal system.
In a statement yesterday, the Presidency said the amendments provide for a definition of a Muslim marriage in the Divorce Act of 1979; the protection and safeguarding of the interests of dependent and minor children of a Muslim marriage; the redistribution of assets on the dissolution of a Muslim marriage; and forfeiture of patrimonial benefits of a Muslim marriage.
“The amended legislation addresses shortcomings in the Divorce Act of 1979 which differentiated between people married in terms of the Marriage Act and people married according to Muslim rites, especially women.
“The new legislation is a response to an earlier Constitutional Court judgment which recognised the need for and importance of protecting Muslim women and children of Muslim marriages, particularly when a Muslim marriage is dissolved,” the Presidency said.
WLC attorney, Charlene May, said since the organisation’s inception in 1999, it has identified challenges and discrimination faced by Muslim women in South Africa as a result of the non-recognition of their marriages.
“The Constitution must be a living document whose effects must be felt and enjoyed by all people. Muslim women under our Constitution continued to face discrimination because unlike women in recognised marriages under the Marriages Act and the Recognition of Customary Marriages Act, their marriages lacked legal recognition and regulation in our law,” she said.
“This meant that upon death and divorce they were left without the same rights as other women who could inherit as spouses, apply for maintenance, and receive just and equitable distribution of assets from marriage.”
May said the court also found that the Divorce Act was unconstitutional in that it failed to provide a remedy in law for Muslim women upon the dissolution of their Muslim marriages, in the same way as other women.
Meanwhile, Al Jama-ah party president Ganief Hendricks said the party opposed the Bill in its current state, adding that the party had made recommendations to the president and provided draft amendments on behalf of its Muslim constituencies, which were “constitutional, practical, and Islamically compliant”.
He said the Bill in its current form violated the tenets of Islam.
“In reality, a divorce by proxy or state branch or body violates the cardinal rules of the Islamic dissolution of marriage, which is solely the right of either husband or wife in an Islamic marriage, and which is facilitated by religious bodies and members of the Ulema who are certified and qualified to oversee the process.”
shakirah.thebus@inl.co.za
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