Court finds that our laws fall short concerning Muslim marriages.
In the recent SCA case, where the President and Minister of Justice were the Appellants, regarding Muslim marriages, the court found that:
The Marriage Act and the Divorce Act are declared to be
inconsistent with the Constitution in that they fail to recognise marriages
solemnised in accordance with Sharia law (Muslim marriages) as valid
marriages (which have not been registered as civil marriages) as being valid
for all purposes in South Africa, and to regulate the consequences of such
recognition.
The Divorce Act is inconsistent with the Constitution insofar as
it fails to:
provide for mechanisms to safeguard the welfare of minor or
dependent children of Muslim marriages at the time of dissolution of the Muslim
marriage in the same or similar manner as it provides mechanisms to safeguard
the welfare of minor or dependent children of other marriages that are being
dissolved.
provide for the redistribution of assets, on the dissolution of a
Muslim marriage, when such redistribution would be just.
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.
The declarations of constitutional invalidity are referred to the
Constitutional Court for confirmation.
The common law definition of marriage is declared to be
inconsistent with the Constitution and invalid to the extent that it excludes
Muslim marriages.
The declarations of invalidity 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 passing new
legislation within 24 months, 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.
Pending the coming into force of legislation or amendments to
existing legislation, it is declared that a union, validly concluded as a
marriage in terms of Sharia law and subsisting at the date of this
order, or which has been terminated in terms of Sharia law, 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:
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
the provisions of s 7(3) of Divorce Act shall apply to such a
union regardless of when it was concluded.
