South African Parliament publishes bill to change laws governing Muslim marriages

South Africa's Parliament has published for public comment a Bill that seeks to change the legal status of customary Muslim marriages under Sharia law

Johannesburg: South Africa’s Parliament has published for public comment a Bill that seeks to change the legal status of customary Muslim marriages under Sharia law.

These changes have been delayed for nearly three decades after the first democratically-elected government under Nelson Mandela vowed to correct their non-recognition by the apartheid-era white minority government.

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In a landmark earlier ruling, the Constitutional Court declared the apartheid-era Marriage Act and the Divorce Act to be inconsistent with sections of the new Constitution of the Republic of South Africa.

It said that they fail to recognise marriages solemnised in accordance with Sharia law, which has not been registered as civil marriages, as valid marriages for all purposes in the country.

The Women’s Legal Centre Trust took on the president of the country at the Constitutional Court, which said in its judgment that ‘‘ . . . we are concerned about the hardships faced by Muslim Women in a Muslim marriage as a consequence of being excluded from the benefits derived from the Marriage Act and the Divorce Act.” Among the issues in Muslim marriages that were declared unconstitutional were that the current Acts fail to provide for mechanisms to safeguard the welfare of minor or dependent children born of Muslim marriages; fails to provide for the redistribution of assets on the dissolution of a Muslim marriage when such redistribution would be just.

It also fails to provide 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 that are dissolved.

Al Jama’ah party leader in Parliament Ganief Hendricks, who has been spearheading the issue for several decades, said Muslim marriages under Shariah Law should be accorded the same status by the government as is the case with African customary marriages through the registration process at the Department of Home Affairs.

Hendricks also called for the department to discontinue the practice of indicating “not married” as the marital status on death certificates for Muslims who had been married by Muslim rights, as this caused many inheritance problems.

He said the dramatic rise in the number of deaths of spouses during the COVID-19 pandemic had highlighted this concern.

The preamble to the Bill says that it provides an effective medium to address the “mischief” identified by the courts and provides an interim but effective remedy which immediately responds to the court’s injunctions.

“The Divorce Amendment Bill seeks to amend the Divorce Act to address the Constitutional Court judgement by ensuring the identified gaps in respect of Muslim marriages are closed through the introduction of four new clauses,” it said.