The Women’s Legal Centre (WLC) hailed a significant triumph for Muslim women and children in Muslim marriages, now officially recognised following President Cyril Ramaphosa’s enactment of the Divorce Amendment Bill. This follows the WLC’s application to the Constitutional Court seeking legal recognition of Muslim marriages.
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The WLC voiced concerns over the challenges faced by Muslim women within these marriages, stemming from their exclusion from the Marriage Act and the Divorce Act. In June 2022, the Constitutional Court ruled that the Marriage Act of 1961 and the Divorce Act of 1979 were inconsistent with the Constitution, as they failed to acknowledge marriages conducted under Shariah law, leaving these women and children without legal protection in the South African legal framework.
A recent statement from the Presidency highlighted the amendments introduced by the Divorce Amendment Bill. These amendments include defining a Muslim marriage in the Divorce Act of 1979, safeguarding the interests of dependent children and minors within such marriages, redistributing assets upon dissolution, and forfeiting patrimonial benefits.
‘The amended legislation addresses shortcomings in the Divorce Act of 1979 which differentiated between people married in terms of the Marriage Act and people married according to Muslim rites, especially women.
‘The new legislation is a response to an earlier Constitutional Court judgment which recognised the need for and importance of protecting Muslim women and children of Muslim marriages, particularly when a Muslim marriage is dissolved,’ the Presidency said.
Charlene May, an attorney at the Women’s Legal Centre (WLC), remarked that since the organisation’s establishment in 1999, it has been dedicated to addressing the challenges and discrimination encountered by Muslim women in South Africa due to the lack of recognition of their marriages.
‘The Constitution must be a living document whose effects must be felt and enjoyed by all people. Muslim women under our Constitution continued to face discrimination because unlike women in recognised marriages under the Marriages Act and the Recognition of Customary Marriages Act, their marriages lacked legal recognition and regulation in our law,’ she said.
‘This meant that upon death and divorce they were left without the same rights as other women who could inherit as spouses, apply for maintenance, and receive just and equitable distribution of assets from marriage.’
May also highlighted that the court determined the Divorce Act to be unconstitutional because it failed to offer a legal recourse for Muslim women upon the dissolution of their marriages, unlike other women in similar situations.
Meanwhile, Ganief Hendricks, the president of the Al Jama-ah party, expressed opposition to the Bill in its current form. He stated that the party had proposed amendments to the president, advocating for changes that aligned with constitutional, practical, and Islamic principles. According to Hendricks, the current version of the Bill contradicts Islamic tenets, particularly regarding the procedure for divorce, which is traditionally the exclusive right of either spouse and overseen by certified members of the Ulema.
‘In reality, a divorce by proxy or state branch or body violates the cardinal rules of the Islamic dissolution of marriage, which is solely the right of either husband or wife in an Islamic marriage, and which is facilitated by religious bodies and members of the Ulema who are certified and qualified to oversee the process.’
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