BLOEMFONTEIN – The Constitutional Court will hear the State’s appeal against the judgment by the Supreme Court of Appeal (SCA) to recognise Muslim marriages through the provisions of the Divorce Act. However, some within the Muslim community believe that state recognition of Muslim marriages are contrary to Shari’ah.
The appeal against the Marriage and Divorce Acts were brought by several respondents who have been advocating for the recognition of Shari’ah marriages. These include the Muslim Judicial Council (MJC), the Commission for Gender Equality, the United Ulama Council of South Africa (UUCSA) and The Women’s Legal Centre Trust.
Farhana Ismail, an attorney and board member of the Muslim Lawyers Association (MLA) explained the SCA judgment on the Muslim Marriage Bill and the consequences for the Muslim community.
She explains that, in December 2020, the SCA ruled that the Marriage Act 25 of 1961 and the Divorce Act 70 of 1979, is inconsistent with the Constitution and does not include Muslim marriages.
The SCA has given the president, cabinet and parliament 24 months to enact new legislation or to amend the current legislation in order to ensure the recognition of Muslim marriages as valid marriages.
In its judgement, the high court said: “It is declared that section 7(3) of the Divorce Act is inconsistent with sub-sections 9, 10, and 34 of the Constitution insofar as it fails to provide for the redistribution of assets, on the dissolution of a Muslim marriage, when such redistribution would be just. It is declared that section 9(1) of the Divorce Act is inconsistent with sub-sections 9, 10 and 34 of the Constitution insofar as it fails to 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”.
Shari’ah law states that marriages are out of property and that being subject to the divorce act has several implications: section 7(3) of the divorce act shall apply to a union regardless of when it was concluded and will now apply to Muslim marriages.
This means that a court can grant an order that it deems equitable unjust, a reason of the fact that the party whose favor the order is granted which applies to the common housewife’s contribution so the court will make an order indirectly or directly with regards to a redistribution of the assets of the parties, said Ismail.
According to the court, until Muslim marriages are regulated in terms of its own act or the Divorce Act, or the Marriage Act is amended, the current provisions of the Divorce Act – which is not Shari’ah placed, will apply to Muslim marriages, said Ismail.
“The matter pending in the Constitutional Court is an application made as to whether Government has a right to govern our Islamic marriages and whether they have a right to force Muslims into a certain regime.”
The MLA opposes the Muslim Marriages Bill and in no way are they endorsing the provisions of the judgment or agreeing with the judgment.
Listen to the full interview here: