Top court rules Divorce Act unconstitutional over Muslim marriages

The Divorce Act is inconsistent with the constitution as it fails to provide for mechanisms to safeguard the welfare of minor children born of a Muslim marriage, the Constitutional Court said on Tuesday.

The top court confirmed the order of constitutional invalidity made by the Supreme Court of Appeal (SCA) in 2020 regarding the Marriage Act as well as the Divorce Act.

The court suspended the order of invalidity for 24 months to enable the president and the cabinet to remedy the defects. They can either amend existing legislation or initiate and pass new legislation to ensure the recognition of Muslim marriages as valid marriages for all purposes in SA and to regulate the consequences arising from such recognition.

The court said the application concerns the persistent nonrecognition of marriages solemnised in accordance with the tenets of sharia. It said this has resulted in the infringement of fundamental rights of parties to Muslim marriages‚ and Muslim women and children in particular‚ for far too long.

The Women’s Legal Centre Trust first applied to the Western Cape High Court in 2014 for an order compelling the president‚ cabinet and parliament to prepare‚ initiate‚ enact and bring into operation legislation providing for the recognition and regulation of Muslim marriages within 12 months.

The state parties opposed the application‚ arguing there is no obligation on the state to initiate and pass legislation to recognise Muslim marriages.

The court ruled in favour of the trust in 2018. The state parties applied for leave to appeal against the high court order. But when the matter was heard before the SCA‚ the president and the justice minister conceded that the Marriage Act and the Divorce Act did infringe the constitutional rights to equality‚ dignity and access to courts of women in Muslim marriages.

These reduced the issues before the SCA to three‚ one of which was whether the constitution places an obligation on the state to prepare‚ initiate‚ introduce and bring into operation legislation to recognise Muslim marriages as valid marriages.

The SCA also ruled in favour of the trust.

"It is a well-known fact that marriages concluded in accordance with the tenets of the Islamic faith have never been accorded recognition as valid marriages in SA‚" acting justice Pule Tlaletsi said in a unanimous judgment on Tuesday.

He said the views expressed by the courts historically were that Muslim marriages do not accord with so-called "civilised" religious practices‚ are potentially polygamous‚ are regarded as immoral and not consonant with religion and are thus contrary to public policy.

Tlaletsi said because some customary marriages permit polygamy‚ they were also treated as contrary to public policy before 1998.

"This treatment forced some of the adherents of Islam to dilute or abandon their faith by‚ among other things‚ electing to marry monogamously according to civil law in order for their marriages to be regarded as valid, the judge said.

"This nonrecognition of Muslim marriages continues to date‚ 28 years into our democratic constitutional dispensation‚" Tlaletsi said.

The fact that the Marriage Act does not recognise Muslim marriages as valid marriages continues to deprive women in and children born of Muslim marriages the remedies and protection they would be afforded had the marriage been concluded in terms of that act, he said.

The exclusion of women married according to sharia from the protection provided by the Marriage Act and the Divorce Act is discriminatory, Tlaletsi ruled.

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