On Tuesday 28 June 2022, in a landmark judgment, eight years in the making, the highest court of the land, The Constitutional Court, confirmed a decision of the Supreme Court of Appeal (SCA) in the matter of Women’s Legal Centre Trust v President of The Republic of South Africa and Others, providing finality on the state’s obligation in recognising Muslim marriages.

In its findings the court ruled that certain sections of the Marriage Act and Divorce Act are unconstitutional in that they are inconsistent with Sections 9, 10, 28 and 34 of the Constitution by differentiating between those who marry in terms of the Marriage Act and those who are married by Muslim Rites in terms of Sharia Law.

In a unanimous judgment, Acting Justice Pule Tlaletsi, found that this differentiation amounted to unfair discrimination because it "deprives Muslim women and their children of the remedies and protections that they would otherwise be afforded if the marriage had been concluded".

The court held that a Muslim marriage could be viewed as a “marriage” as defined in the Marriage Act and that the claims instituted by the applicant were competent.

As part of the court order, the invalidity of the of The Marriage Act and the Divorce Act was suspended for a period of two years to allow the Executive and Legislative arms of government to bring the legislature in line with the Constitution. This realignment is effected by either amending the current legislature or passing new legislature to recognise Muslim marriages.

The court held that there was no justification for the continuing non-recognition of Muslim marriages and it held further that the provisions of the Act further infringe the right to dignity, access to courts, as well as the principle of the best interest of the child.

Historically marriages concluded in Sharia law did not have the full recognition under the current South African legislation due to the nature of these marriages, being polygamous, and therefore against public policy.

This left women and children extremely vulnerable to the dissolution of these marriages, whether by death or divorce. Limited recognition to certain rights of Muslim women has taken place over the last few decades, including the right to inherit in an intestate estate

The practical implications of this latest judgment for those with pending litigation or proposed actions is as follows:

1. pending the finalisation of this legislative process, the following regime will apply in the interim to Muslim marriages:

1.1. Muslim marriages subsisting at 15 December2014 (being the date when this action was initially 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 but not been finally determined as at 28 June 2022 (the date of the judgment), may be dissolved in accordance

with the Divorce Act as follows: –

• All the provisions of the Divorce Act shall be applicable but Muslim marriages will be treated as if they are out of community of property (except where there are agreements to the contrary).
• Section 7(3) of Divorce Act shall apply to such a union regardless of when it was concluded.
• Where a husband is a spouse in more than one Muslim marriage, the court will consider all relevant factors and make any equitable order it deems just and may, mero motu, order the joinder of an interested party.
• From 28 June 2022, Section 12(2) of the Children’s Act 38 of 2005 applies to a prospective spouse in a Muslim marriage concluded after that date and for this purpose, 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.

This judgment is a positive step in the right direction for all religious marriages in South Africa. In the words of Saldulker and Van der Merwe JJA in the judgment of the SCA:

“The non-recognition of Muslim marriages is a travesty and a violation of the constitutional rights of women and children in particular, including, their right to dignity, to be free from unfair discrimination, their right to equality and to access to court. Appropriate recognition and regulation of Muslim marriages will afford protection and bring an end to the systematic and pervasive unfair discrimination, stigmatisation and marginalisation experienced by parties to Muslim marriages including, the most vulnerable, women and children.”