Muslim marriages: A welcome Constitutional Court decision
In a long-awaited and groundbreaking decision in the area of family law, the Constitutional Court of South Africa (CC) confirmed the order of constitutional invalidity of the below mentioned Acts, granted by the Supreme Court of Appeal. This decision was confirmed on 28 June 2022.
The CC, in conformation of the The Supreme Court of Appeal’s order of constitutional invalidity, made the following orders. For the sake of legal precision, they are quoted verbatim.
“1. The Marriage Act 25 of 1961 (Marriage Act) and the Divorce Act 70 of 1979 (Divorce Act) are declared to be inconsistent with sections 9, 10, 28 and 34 of the Constitution in that they fail to recognise marriages solemnised in accordance with Sharia law (Muslim marriages) which have not been registered as civil marriages, as valid marriages for all purposes in South Africa, and to regulate the consequences of such recognition.
2. It is declared that section 6 of the Divorce Act is inconsistent with sections 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 born of Muslim marriages, at the time of dissolution of the Muslim marriage in the same or similar manner as it provides for mechanisms to safeguard the welfare of minor or dependent children born of other marriages that are dissolved.
3. It is declared that section 7(3) of the Divorce Act is inconsistent with sections 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.
4. It is declared that section 9(1) of the Divorce Act is inconsistent with sections 9, 10 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 that are dissolved.
5. The common law definition of marriage is declared to be inconsistent with the Constitution and invalid to the extent that it excludes Muslim marriages.
6. The declarations of invalidity in paragraphs 1 to 5 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 initiating and 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.
7. Pending the coming into force of legislation or amendments to existing legislation referred to in paragraph 6, it is declared that Muslim marriages subsisting at 15 December 2014, being the date when this action was instituted in the High Court, or which had been terminated in terms of Sharia law as at 15 December 2014, 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:
(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 section 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:
(i) shall take into consideration all relevant factors, including any contract or agreement between the relevant spouses, 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.
8. Pending the coming into force of legislation or amendments to existing legislation referred to in paragraph 6, it is declared that, from the date of this order, section 12(2) of the Children’s Act 38 of 2005 applies to a prospective spouse in a Muslim marriage concluded after the date of this order.
9. Pending the coming into force of legislation or amendments to existing legislation referred to in paragraph 6, for the purpose of paragraph 8 above, the provisions of sections 3(1)(a), 3(3)(a) and 3(3)(b), 3(4)(a) and 3(4)(b), and 3(5) of the Recognition of Customary Marriages Act 120 of 1998 shall apply, mutatis mutandis, to Muslim marriages.
10. If administrative or practical problems arise in the implementation of this order, any interested person may approach this Court for a variation of this order.
11. The Department of Home Affairs and the Department of Justice and Constitutional Developmentshall publish a summary of the orders in paragraphs 1 to 10 above widely in newspapers and on radio stations, whichever is feasible, without delay.”
In terms of the above order, Muslim marriages are finally regarded as valid and legally binding in South Africa.
From a conveyancing perspective, it’s important to note that a party to a customary Muslim marriage can no longer be described as “Unmarried” in deeds and documents, as was previously an option as these marriages were not legally recognised.
Spouses must now be described as “Married in terms of/ according to Muslim Rites/ Islamic Rites” in deeds and documents. In instances where registered deeds refer to the status as “Unmarried”, the provisions of section 17(4) of the Deeds Registries Act must be invoked in order to update these title deeds.
Written by Wessel de Kock
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