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Media Statements
Reporting on Judgment: Muslim Marriages: President of the RSA and Minister of Justice and Constitutional Development V Women’s Legal Centre Trust & Others (SCA 619/19) 18 Dec 2020
21 December 2020
Follow this link for the order "President of the RSA and Minister of Justice and Constitutional Development V Women’s Legal Centre Trust & Others (SCA 619/19) 18 Dec 2020", of which a summary is publishied below:
Judgment was Reserved,
Thereafter, on this day, the following order is made:
1. The appeal and the cross-appeals succeed in part and the order of the court a quo is set aside and replaced with the following order:
'1.1 The Marriage Act 25 of 1961 (the Marriage Act) and the Divorce Act 70 of 1979 (the Divorce Act) are declared to be inconsistent wih ss 9, 10, 28 and 34 of the Constitution of the Republic of South Africa, 1996, In that they fail to recognise marriages solemnised in accordance with Sharia law (Muslim marriages) as valid marriages (which have not been registered as civil marriages) as being valid for all purposes in South Africa, and to regulate the consequences of such recognition.
1.2 It is declared that s 6 of the Divorce Act is inconsistent with ss 9, 10, 28(2) and 34 of the Constitution insofar as it fails to provide for mechanisms to safeguard the welfare of minor or dependent children of Muslim marriages at the time of dissolution of the Muslim marriage in the same or similar manner as it provides mechanisms to safeguard the welfare of minor or dependent children of other marriages that are being dissolved.
1.3 It is declared that s 7(3) of the Divorce Act is inconsistent with ss 9, 10, and 34 of the Constitution insofar as it fails to provide for the redistribution of assets, on the dissolution of a Muslim marriage, when such redistribution would be just.
1.4 It is declared that s 9(1) of the Divorce Act is inconsistent with ss 9, 1 0 and 34 of 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 or similar terms as it does in respect of other marriages.
1.5 The declarations of constitutional invalidity are referred to the Constitutional Court for confirmation.
1.6 The common law definition of marriage is declared to be inconsistent with the Constitution and invalid to the extent that it excludes Muslim marriages.
1. 7 The declarations of invalidity in paras 1.1 to 1.4 above 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.
1.8 Pending the coming into force of legislation or amendments to existing legislation referred to in para 1.7, it is declared that a union, validly concluded as a marriage in terms of Sharia law and subsisting at the date of this order, or, which has been terminated in terms of Sharla law, but in respect of which legal proceedings have been instituted and which proceedings have not been finally determined as at the date of this order, may be dissolved in accordance with the Divorce Act as follows:
1.9 It is declared that, from the date of this order, s 12(2) of the Children’s Act 38 of 2005 applies to Muslim marriages concluded after the date of this order.
(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.
Enquiries: Ms Ansie Fourie
Acting Director
Directorate: Law Enforcement
Tel:(012)315-1519/0832947570
AnsFourie@justice.gov.za