By Hannah Hess
Apartheid-era South African courts historically denied recognition to marriages conducted according to Islamic rites, since such unions were perceived as contrary to accepted social customs.
Until today, Muslim marriages remain unrecognized under the Marriage Act 25 of 1961, the Divorce Act 70 of 1979, or the Customary Marriage Act 120 of 1998 for regulating disputes in the case of marriage dissolution or inheritance of an estate in the case of death.
Women and children do not receive their right to a fair public hearing before the court on these matters. Divorcees of Muslim marriages suffer “material disadvantage” compared to those in civil and customary marriages and widows lack legal recognition as the “surviving spouse.” Children of Muslim marriages are not supervised in guardianship, maintenance and custody matters.
The leading applicant in the case, the Women’s Legal Center Trust (WLC), presents a claim against the President of the Republic that the non-recognition and non-regulation of Muslim marriages violates the constitutional rights of women and children involved and breaches South Africa’s international obligations. WLC petitions for a Bill “to provide for the recognition of Muslim marriages for all purposes” and make Muslim marriages valid under the Marriage Act and Divorce Act.
In recognition of past injustices, the constitution commits South Africa to “human dignity, the achievement of equality, advancement of human rights and freedoms.” The constitution also permits for legislation recognizing marriages “concluded under any tradition or adhered to by persons professing a particular religion” but such recognition must be consistent with the provisions of the Bill of Rights.
Furthermore, the state’s international commitments regarding women’s rights accepted with CEDAW, ICCPR, Women’s Protocol, and the SADC protocol lend interpretive weight to what is reasonable under section 7(2) of the Bill of Rights, while not creating “binding and enforceable rights.”
Whether the “State’s omission to recognize Muslim marriages or to amend legislation to regulate Muslim marriages” violates section 9(3) of the constitution on grounds of religious and marital status and also indirectly discriminates on the basis of gender and sex. Also, whether the state violates its international obligations.
Holding and reasoning:
The court maintains that the non-recognition of Muslim marriages is a “systemic failure” of the state rooted in apartheid-era prejudices. The court orders the state to enact legislation recognizing Muslim marriages and regulating their consequences within twenty-four months. Otherwise, a temporary remedy will be instituted allowing for the dissolution of Muslim marriages under the Divorce Act, giving the court jurisdiction regarding the redistribution of assets and supervision of the children. The court would adapt the definition of divorce to be “sensitive” to the requirements Sharia for Talaq or Faskh, in lieu of the standard definition of “irretrievable breakdown.” The Divorce Act alone is ordered as an interim measure since divorce remains the most problematic issue “giving rise to potential injustice” for women and children.
The South African High Court has ordered the president to enact legislation recognizing marriages conducted according to Muslim rites for South Africa’s approximately one million Muslim residents. This announcement was welcomed by both the Muslim Judicial Council and the Women’s Legal Centre, who argued in court that the current policy of non-recognition violates the rights of Muslim women and children in those marriages.
If the government and ministries fail to draft new legislation in compliance with this court order within twenty-four months, then the Divorce Act will automatically come into effect for an interim period. The Divorce Act would provide temporary relief for the dissolution of Muslim marriages, giving the court jurisdiction regarding the redistribution of assets and supervision of children.