Marriages under Islamic law given legal status
The South African Constitutional Court has given legal recognition to Muslim women married under Sharia law, and also their children.
In an unanimous judgment, the apex court confirmed that the Marriage Act and the Divorce Act are unconstitutional in failing to recognise Muslim marriages which have not been registered as civil marriages.
The court further declared as unconstitutional sections of the Divorce Act which fail to provide mechanisms to safeguard the welfare of children born of Muslim marriages, and fail to provide for redistribution of assets.
The matter came before the apex court for confirmation of similar orders made by the Supreme Court of Appeal. However, the Constitutional Court went further, and granted interim relief.
The application, launched by the Women’s Legal Centre Trust, had its genesis in applications in the country’s Western Cape High Court which were consolidated for hearing. They involved Muslim women married in terms of Sharia law, who complained that they had been discriminated against because they had no legal protection.
One had been excluded from inheriting from her late husband’s estate. Another had been precluded from benefiting from her husband’s pension fund.
In its initial stages the application was opposed by government, including the President and the Minister of Justice and Constitutional Development, who said the state had no obligation to initiate and pass legislation to recognise Muslim marriages.
At the Supreme Court of Appeal, however, both conceded that both acts infringed on the constitutional rights to equality, dignity and access to court. They also conceded that the rights of children were similarly infringed.
Writing for the court, Acting Judge Pule Tlaletsi said Muslim marriages had never been recognised as being “valid” - and this situation continued to date, 28 years into democracy. While, in theory, women could opt to also marry civilly, this was often not a meaningful choice. Their exclusion of protection provided for in both acts was discriminatory. It often left women destitute, or with very small estates, upon talaq (divorce).
He said not recognising such marriages as being valid sent a message that they were not worthy of legal recognition or protection. The retention of such a status would support “deep-rooted prejudices”.
“The views of those willing to live under the status quo cannot prevail over the extension and protection of constitutional rights to others.
“Women in Muslim marriages must be fully included in the South African community so they can enjoy the fruits of the struggle for human dignity, equality and democracy.
“It should be made clear that the Constitutionality of Sharia law is not under consideration. We are concerned with the hardships faced by women (and children) as a consequence of being excluded from the benefits (of the two acts),” Judge Tlaletsi said.
The court also ruled that the common law definition of marriage was also unconstitutional insofar as it failed to recognise Muslim marriages as valid “simply because they are potentially polygamous”.
While the Women’s Legal Centre Trust wanted an order that the recognition be backdated to 1994, Judge Tlaletsi said given the rights of third parties which could be implicated by that, it was necessary to strike a balance.
The order, he said, would apply to all unions validly concluded in terms of Sharia law and subsisting at the date that the Trust instituted its application in the High Court (15 December 2014). It would also apply to marriages no longer in existence, but where proceedings have been instituted and not finally determined. (www.groundup.org.za)