All marriages entered in terms of Islamic law, are currently not recognised as valid marriages.
For a valid marriage to be recognised in South Africa one must get married in terms of civil law which is regulated by the Marriage Act 25 of 1961 or two people can enter into a civil union partnership under the Civil Union Act 17 of 2006.
Everyone has the right to freedom of religion, belief and opinion. The Constitution allows for legislation to recognise marriages that are entered under any tradition or religion and there are certain rights and obligations that arise from a civil marriage.
Couples married in terms of Islamic law will not be able to benefit from these rights and therefore this non-recognition and non-regulation violate the rights of women and children when it comes to divorces as well as the law of succession. Leaving them unprotected and in a vulnerable state.
The law has developed to some extent over the years and a surviving spouse as defined in the Law of Intestate Succession includes a spouse in a Muslim marriage, therefore he or she can inherit a portion of the estate of the deceased spouse.
Dissolution of an Islamic marriage which is not registered under civil law would have the same effect as the dissolution of a marriage out of community of property with no accrual or a civil union without a contract. One party would not have any lawful claim to institute against the estate of the other upon divorce as there was no valid marriage and therefore the Divorce Act 70 of 1979 (“Divorce Act”) will not be applicable.
The Women’s League Centre Trust (“WLCT”) brought an application in the Cape High Court to which a full bench heard the case. The WLCT prayed for a Bill to provide for the recognition of Muslim marriages as a valid marriage for all purposes in South Africa and to make an order that the government failed to fulfil their constitutional obligation to protect, promote and fulfil various constitutional rights. The Judgment was handed down and it makes provision for legislation to be enacted within 24 months of the date of Judgment.
The new legislation will recognise marriages solemnised in accordance with Sharia law as valid marriages and to regulate the consequences of such recognition. It was founded in the Judgment that the President, Cabinet and Parliament failed in their constitutional obligation as set out above.
If legislation is not enacted within 24 months of the date of Judgment, a union validly concluded as a marriage in terms of Sharia law and which is still in force when the order becomes operative, may be dissolved in accordance with the Divorce Act and all the provisions of that Act will be applicable. It will not apply to marriages that were validly terminated in terms of Sharia law prior to the order becoming operative.
It is also ordered that in the case of a husband who is a spouse in more than one Muslim marriage, the court will consider all relevant factors. This includes any contract or agreement and must make any order that it deems just and may order that any person who, in the court’s opinion, has a sufficient interest in the matter, be joined in the proceedings.
This is a major step in family law as women and children will finally have the protection they need.
- Women’s Legal Centre Trust v President of the Republic of South Africa and Others, Faro v Bingham N.O. and Others, Esau v Esau and Others (22481/2014, 4466/2013, 13877/2015)  ZAWCHC 109;  4 All SA 551 (WCC); 2018 (6) SA 598 (WCC) (31 August 2018)
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