By Nomonde Mnukwa
History was made last month when South Africa through the Department of Home Affairs issued the first ever batch of Muslim marriages, following the signing of the Divorce Amendment Bill into law by President Cyril Ramaphosa in May 2024. The Bill, which was signed into law earlier this year, amended the Divorce Act of 1979 to recognise Muslim marriages and safeguard the interests of Muslim women and children in the case of death or dissolution of a marriage.
The implementation of this new law demonstrates the coherent functioning of all three arms of the state, which are enjoined to work together to safeguard our rights as enshrined in the Bill of Rights. Prior to this, Muslim marriages were for many years not legally recognised or regulated in South Africa under the Marriage Act of 1961 and Divorce Act of 1979. The absence of legal recognition created a lot of uncertainty upon the death or dissolution of a Muslim marriage.
In the event of a divorce or death for instance, women and children faced hardships as they could not inherit, claim maintenance or spousal benefits and any portion of the husband’s estate. This gap in law often left women and children destitute, and they had no recourse to assert their rights.
The non-recognition was challenged in courts and finalised by the Constitutional Court in 2022. The Constitutional Court confirmed the High Court and Supreme Court of Appeal’s findings that failure to recognise Muslim marriages as valid marriages infringes on the dignity of both Muslim women and the best interests of the child.
It upheld that this non recognition violates the rights to equality, human dignity, access to courts, and children’s rights. The Constitutional Court upheld that the Marriage Act and the Divorce Act were inconsistent with sections 9, 10, 28 and 34 of the Constitution as they did not recognise Muslim marriages.
In the unanimous judgment written by Tlaletsi AJ, the Constitutional Court said: “The fact that people married in terms of Sharia law do not enjoy the same status, benefits or protections, as people married in terms of the Marriage Act constitutes, in my view, a form of direct discrimination on the basis of religion. It also gives rise to direct differentiation on the basis of marital status”.
It also ordered national government to within 24 months amend existing legislation to recognise Muslim marriages as valid marriages and regulate the consequences of such a marriage. The newly signed law further provides a definition of a Muslim marriage, provides for the redistribution of assets on the dissolution of a Muslim marriage, provides for the forfeiture of patrimonial benefits of a Muslim marriage and protects the interests of dependent and minor children of a Muslim marriage.
Therefore, the issuing of these certificates demonstrates government’s commitment to abide by the ruling of the courts. It is also a testament to our commitment to ensure that Muslim women and children’s right to equality, dignity, access to justice as well as the best interests of the minor child as enshrined in our Constitution are upheld.
As we commemorate the 30 Years of Democracy, we should be proud of what we have achieved in a short period of time. We have made huge strides in ensuring equality and that access to justice is not only for the few and rich but is accessible to everyone. We have also worked to ensure that we honour cultural and religious traditions, which is an important part of ensuring social cohesion, nation building and a shared national identity. It is now up to all South Africans to know their rights and make use of all available institutions to improve their lives for the better.
*Mnukwa is the Acting Director-General of the Government Communication and Information System (GCIS)
