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Recognition of Muslim Marriages and the Divorce Amendment Bill

Recognition of Muslim Marriages and the Divorce Amendment Bill

Arisha Rajaram

Lack of Recognition for Muslim Marriages

The Constitutional Court in the case of Women’s Legal Centre Trust v President of the Republic of South Africa and Others (2022), has deemed the Divorce Act 70 of 1979 (hereafter referred to as “the act”) unconstitutional due to its exclusion of Muslim marriages.

Previously, the lack of recognition for Muslim marriages in civil law left individuals, particularly women, without the ability to seek divorce through the courts. This legal oversight often resulted in significant hardships for Muslim families, depriving them of the same protections and remedies available under the act.

Under Sharia law, women frequently found themselves financially vulnerable after divorce, unable to enforce maintenance rights or secure their children’s interests.

The Divorce Amendment Bill

The Divorce Amendment Bill seeks to rectify the deficiencies in the Divorce Act of 1979, which unjustly differentiated between marriages conducted under the Marriage Act and those solemnized according to Muslim rites, particularly impacting women.

The Divorce Amendment Bill includes several key provisions:

  • Definition of Muslim Marriage: Establishing a clear legal definition to recognize Muslim marriages.
  • Protection of Children’s Interests: Ensuring the rights and welfare of dependent and minor children from Muslim marriages are safeguarded.
  • Asset Redistribution: Providing guidelines for the fair distribution of assets upon the dissolution of a Muslim marriage.
  • Forfeiture of Patrimonial Benefits: Addressing the potential forfeiture of benefits accrued during a Muslim marriage.

These amendments aim to create a more equitable legal framework, promoting justice and fairness for all families, regardless of their marital traditions.

Article Disclaimer

This article is not intended to provide legal advice. This article is a general information sheet and should not be used or relied on as legal or other professional advice. This article is based on research regarding laws and may be subject to change. No liability can be accepted for any errors or omissions nor any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

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