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During 2022 the Constitution Court found in Women’s Legal Centre Trust v President of the Republic of South Africa and Others that the Divorce Act was in conflict with the Divorce Act as far as it extended to Muslim marriages. The president and Cabinet, along with Parliament, had 24 months to remedy the defects.
Recently the portfolio committee on Justice and Correctional Services has adopted the Divorce Amendment Bill. The new Bill primarily focuses on creating a legislative framework for Muslim Marriages in South Africa by amending the Divorce Act.
Previously a Muslim marriage was only recognized in terms of Islamic Law and had no legal ground in terms of civil law. This meant that a Muslim person could only get a religious divorce and could not approach the court for a divorce, which resulted in several Muslim women and children not receiving the protection that they required.
The Divorce Amendment Bill includes provisions for the protection and safeguarding of the interests of dependent and minor children of a Muslim marriage. The Bill furthermore addresses the redistribution of assets on the dissolution of a Muslim marriage and provides for the forfeiture of patrimonial benefits of a Muslim marriage.
It is however important to note that the Bill does not replace an Islamic divorce. Should a person wish to proceed with a religious divorce, they can still proceed to follow the prescribed steps in terms of Islamic law.
Should you require any guidance or assistance with the above, please do not hesitate to contact our offices on 021 8242020 or info@smutsco.co.za
