By: William Mogale Sekgala 9 February 2022
Previously marriages concluded in terms of Muslim rites/ customs (Sharia Law) were not recognised by South African law i.e. the Marriage Act, the Divorce Act and the Common Law.
Muslim customary marriages were viewed as potentially polygynous and thus contra bonos mores (contrary to good morals).
The position has since changed as a result of the recent landmark case of President of the RSA and Another v Womens Legal Centre Trust and Others; Minister of Justice and Constitutional Development v Faro and Others; and Minister of Justice and Constitutional Development v Esau and Others President of the RSA and Another v Womens Legal Centre Trust and Others; Minister of Justice and Constitutional Development v Faro and Others; and Minister of Justice and Constitutional Development v Esau and Others President of the RSA and Another v Womens Legal Centre Trust and Others; Minister of Justice and Constitutional Development v Faro and Others; and Minister of Justice and Constitutional Development v Esau and Others (Case no 612/19) [2020] ZASCA 177 (18 December 2020) wherein it was decided that the Divorce and Marriage Acts were inconsistent with the Constitution of South Africa, in that, they did not recognise Muslim customary marriages.
The court declared that marriages concluded in terms of Sharia law were valid.
The common law definition of marriage was declared to be unconstitutional and invalid to the extent that it excludes Muslim customary marriages.
The Court further ruled, the lack of recognition of Muslim customary marriages meant that children were not protected by the statutory minimum age for consent to a Muslim customary marriage, in that, children were not afforded the automatic Court oversight afforded by Section 6 of the Children’s Act i.e. the Courts were not afforded an opportunity to safeguard the best interests of minor children.
The Court further described how the persistent non-recognition of Muslim marriages infringed the right to dignity of Muslim women.
In its conclusion, the court ordered for development of the law through legislation within a period of 24 months from the date of the order, to the effect that Muslim marriages are declared valid.
Until such time that the law is developed, all Muslim marriages will be dissolved in terms of the Divorce Act, with the exception that such marriages will be treated as OUT of community of property unless there is an agreement to the contrary.