Twenty-eight years into democracy and Muslim marriages – those marriages concluded in terms of sharia law – were still not recognised as marriages for purposes of South African marriage and divorce law.
This had a pervasive impact on not only the women in these marriages but also on the children born to them.
The constitutional court, in Women’s Legal Centre Trust vs President of the Republic of South Africa and Others, confirmed on 28 June the decision of the supreme court of appeal (SCA) to declare parts of the Marriages Act and Divorces Act unconstitutional and invalid insofar as they do not recognise Muslim marriages.
This judgment brought an end to 13 years of litigation which started in 2009 when the Women’s Legal Centre Trust unsuccessfully requested direct access to the constitutional court. In August 2018, the Cape Town high court agreed that the legislation was unconstitutional and invalid.
Moreover, given the extent of the discrimination experienced by Muslim women, the court found that legislation regulating Muslim marriages would be the most reasonable and effective measure to protect, promote and fulfil the rights of women in Muslim marriages. On appeal by the state, the SCA declared the Marriage Act and Divorce Act unconstitutional and invalid for not recognising Muslim marriages. Crucially, the SCA did not confirm the obligation on the state to enact legislation to cure the invalidity.
In coming to its decision that Muslim marriages should be recognised and protected under South African law, the constitutional court found the marriage and divorce acts discriminate unfairly and unjustifiably against women in Muslim marriages based on religion, marital status and gender. Although Muslim women can solemnise their marriages in terms of the Marriage Act, the apex court explained that this is not necessarily a “meaningful choice” due to the unequal bargaining powers between men and women.
The decision to enter into a Muslim marriage, and to not register the marriage, can also not be a basis for denying women the rights and benefits that are available to all other married people. This includes, for example, the right to share in the joint estate and assets when divorce takes place and the right to be listed as co-owner of assets.
The constitutional court also found the common law definition of marriage, which emphasises the union of two people to the exclusion of all others, is unconstitutional and invalid in that it does not recognise Muslim marriages. The fact that Muslim marriages might be polygamous can’t exclude them from being recognised as marriages.
The court recognised that the failure to recognise Muslim marriages as valid “sends a message that Muslim marriages are not worthy of legal recognition or protection”. This message strikes at the core of our constitutional commitment to freedom, equality and human dignity.
The non-recognition of Muslim marriages not only infringes on the rights of women but also those of their children. The impact is particularly clear when it comes to the dissolution of a Muslim marriage. Prior to this judgment, children born of Muslim marriages were not protected by section 6 of the Divorce Act, which safeguards the interests of dependent and minor children. It allows courts to make an order on issues of maintenance, custody and access.
Importantly, the court may not grant a divorce order if it is not satisfied with the welfare of a child. The exclusion of children born of Muslim marriages goes against the right of children to have their best interests be vital in all matters that concern them, a right guaranteed under Section 28 of the Constitution.
The judgment has far-reaching implications for the lives of women in Muslim marriages and their children. Parliament has 24 months to decide whether to amend both the Marriage Act and the Divorce Act or whether to adopt legislation that gives sufficient recognition to Muslim marriages.
In the meantime, the Divorce Act applies to Muslim marriages that existed on or were concluded after 15 December 2014, as well as those that were terminated in terms of sharia law by 15 December 2014 where the legal proceedings are ongoing.
These marriages are treated as marriages out of community of property for purposes of the act, unless there are agreements between the spouses that show otherwise. Interestingly, the court ordered that although Muslim marriages are viewed as marriages out of community of property, a spouse to a Muslim marriage is allowed to approach a court to ask that the assets of the other spouse be divided in a manner that it decides to be fair regardless of when the marriage was concluded. Where the husband has more than one wife, the court will have to consider all relevant factors in determining what would be a fair distribution.
The judgment could seem a win for Muslim women in South Africa – their marriages are finally recognised and brought under the purview of the Constitution. Nonetheless, the decision falls short in two crucial ways.
First, the interim order only applies to Muslim marriages that were concluded on or after 15 December 2014, or those that were terminated by this date, but still subject to ongoing legal proceedings. The constitutional court reasoned that applying its order to all Muslim marriages that existed, and were concluded after 27 April 1994, would be disruptive and implicate the rights of third parties, for example, husbands who might have benefitted from the divorce to the disadvantage of their wives.
The Commission for Gender Equality argued that the disruption would be limited if aggrieved spouses whose marriages have terminated were required to approach the court to ask that it determine a fair distribution of assets, on a case-by-case basis. Therefore, it is not a blanket retrospective order and allows courts to make an order based on the circumstances.
In practical terms, what the order means is that women who were divorced prior to 15 December 2015 in terms of sharia law, and who have not approached the court regarding what they see as an unfair distribution of assets, have no recourse. Interim relief is only available to the small number of women who had the courage, resources and good fortune to launch costly litigation before the cut-off date.
Second, the constitutional court failed to hold the state accountable in terms of Section 7(2), which requires the state to adopt reasonable and effective measures to promote, protect and fulfil human rights. Although it recognised that the marriage and divorce acts are deficient, the court found there is no duty on the state to adopt legislation to cure this.
We recognise that Section 7(2) does not impose a duty to legislate in all circumstances. However, the experiences of Muslim women illustrate multiple and intersectional discrimination that has not been addressed during the 27 years of our constitutional democracy despite ongoing calls to do so.
These are exceptional circumstances that demonstrate the need for legislation that recognises Muslim marriages in a way that is cognisant of its specific characteristics. The courts have also repeatedly acknowledged that legislation is the only way to meaningfully address this history of exclusion and the ongoing vulnerability of women in Muslim marriages.
The interim order, although welcome, is not a permanent solution. Should the state not comply with the order to amend existing legislation or enact new legislation in 24 months, we may well be seen back in court.
The views expressed are those of the authors and do not necessarily reflect the official policy or position of the Mail & Guardian.