Muslim marriages are now legally recognized in South Africa

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“We are asking the court not to close the door on women. Give them the option to exercise their rights. Without this relief, women, who have historically been deprived, will continue to be deprived.”

(Nazreen Bawa)

In 2018 the Cape High Court agreed that Muslim marriages did not enjoy any legal status.  During June 2022 the Constitutional Court confirmed that certain sections of the Marriage Act and Divorce Act amounts to discrimination as it did not include Muslim marriages and were declared unconstitutional. It also held that the common law definition of marriage excluded Muslim marriages.

Prior to the judgement, if a Muslim marriage was concluded in terms of Sharia law and the marriage was not registered, the women was denied certain rights and benefits that are available to all other married people in South Africa. For example, the right to share in a joint estate when divorce takes place.

The court confirmed that this amounts to unfair discrimination as it “deprives Muslim women and their children of the remedies and protections that they would otherwise be afforded if the marriage had been concluded”. Women who were married under Sharia law were often powerless after divorce as they did not have any legal protection enabling them to fight for their rights or the interest of their children.

The court stated that Government must either amend the legislation or develop legislation within 2 years from the date of the judgment in order to give recognition to Muslim marriages.

For the time being, Muslim women and children born of Muslim marriages will now be in a position to exercise their “rights to housing, land, and property accumulated in marriage when their marriage comes to an end”.  This judgement further allows courts to make orders on issues of maintenance, custody and access in Muslim divorce proceedings as the Divorce Act will apply to Muslim marriages that existed, were concluded or terminated in terms of Sharia Law on or after 15 December 2014.

The court further stated that although Muslim marriages are viewed as marriages out of community of property, spouse/s will be in a position to approach the court for a division of assets in fair manner, regardless of when the marriage was concluded. If the husband had more than one spouse, all relevant factors will be taken into account in order to determine what a fair distribution will be.

This judgement provides equality to all marriages in South Africa and is certainly a triumph for women and children that were previously prejudiced.  We eagerly await the next chapter to be written in a continuous fight for equality to ensure no discrimination.

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