The Marriage Law and the Divorce Law are unconstitutional in that they do not recognize Muslim marriages as valid.
The Constitutional Court found this Tuesday when it upheld the unconstitutional order issued by the Supreme Court of Appeals (SCA ) in 2020 in relation to the Marriage Act and the Divorce Act.
The court also said that the Divorce Act is unconstitutional in that it does not provide mechanisms to protect the welfare of minor children , born of Muslim marriages, at the time of dissolution of Muslim marriage compared to other marriage arrangements.
The court stayed the annulment order for 24 months to allow the President and the Cabinet to remedy the aforementioned deficiencies. They could either amend existing laws or initiate and pass new laws to ensure the recognition of Muslim marriages as valid marriages for all purposes in South Africa and to regulate the consequences of such recognition.
The court said the motion concerns the continued non-recognition of marriages contracted in accordance with Sharia principles (Muslim marriages). For far too long, this has resulted in a violation of the fundamental rights of Muslim spouses, and Muslim women and children in particular.
The Women’s Legal Center Trust (WLCT) first approached the West Cape High Court in 2014 for an order obliging the President, Cabinet and Parliament to prepare, initiate, enact and enforce legislation within 12 months to recognize and regulate Muslim marriages.
The state parties opposed the motion, arguing that the state is under no obligation to initiate and pass legislation recognizing Muslim marriages.
The court ruled in favor of the WLCT in 2018. States parties requested leave to appeal against the high court order. But when the matter came before the SCA, the President and Attorney General acknowledged that the Marriage Law and Divorce Law violated the constitutional rights to equality, dignity and access to justice of women in Muslim marriages.
< p> These reduced the questions before the SCA to three, one of which was whether the constitution requires the state to prepare, institute, implement and enact laws to recognize Muslim marriages as valid marriages.
The SCA also ruled in favor of the WLCT.
“It is a well-known fact that marriages contracted in accordance with the tenets of the Islamic faith have never been recognized as valid marriages in ZA,” said the officiant Judge Pule Tlaletsi in a unanimous verdict Tuesday.
He said the views expressed by the courts are historically that Muslim marriages are not compatible with so-called “civilized” reli religious practices, potentially polygamous were considered immoral and incompatible with religion and thus against public order.
Tlaletsi said that because some common marriages allowed polygamy, before 1998 they were also considered against the treated in violation of public order.
“This treatment has forced some of the followers of Islam to dilute or renounce their faith, choosing among other things to marry monogamously, according to civil law, in order for their marriages to be considered valid
“This non-recognition of Muslim marriages continues to this day, 28 years after our democratic constitution began,” Tlaletsi said.
Tlaletsi said that the fact that the marriage law is Muslim Does not recognize marriages as valid marriages, continues to deprive women and children born of Muslim marriages of the legal remedies and protections they would be afforded if the marriage were within the meaning of this law s would have been entered into.
“While women are theoretically free to enter into a Muslim marriage and then marry For the purposes of the Marriage Act, this is usually no. This is not a viable choice as evidence provided by the (Friend of the Muslim Assembly Cape court) have shown that women in Muslim marriages are often unable to persuade their partners to enter into civil marriages, often due to differential bargaining power.”
Tlaletsi said the exclusion of women married under Sharia law from the protections under the Marriage Law and Divorce Law is discriminatory.
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