Recognition of marriages concluded in terms of Islamic Law

This persisting invalidity of Muslim marriages is, of course, a constitutional anachronism.  It belongs to our dim past.  It originates from deep-rooted prejudice on matters of race, religion and culture” (Moseneke J, 2004)

In the recent judgment of Women’s Legal Centre Trust v President of the Republic of South Africa and Others, the Court dealt with the recognition of marriages solemnised in terms of Islamic Law.

After being refused direct access by the Constitutional Court, the Women’s Legal Centre Trust (the ‘Applicants’) made an application to the Western Cape High Court for an order declaring that the President and his cabinet (the ‘Respondents’) failed to fulfil their constitutional obligations namely to respect, protect, promote and fulfil the rights in terms of sections 9, 10, 15, 28, 31 and 34 of the Constitution, and that such conduct is invalid.

The Applicants argued that the State’s failure to recognise Muslim marriages violates section 9(1) of the Constitution as this category of persons are denied equal protection and benefit of the law.

In their counter arguments, the Respondents argued that South Africa’s international obligations do not create enforceable domestic rights, unless and until such obligations have been incorporated into domestic law by enacting legislation.

In its judgment, the court stated that the non-recognition of Muslim marriages is historic, persistent and remains unfulfilled since the beginning of democracy. The Court found that this is not a single instance, but rather a systemic failure by the State to provide recognition and regulation, potentially affecting millions of people around the country.

The Court further held that South Africa has undertaken to take reasonable and appropriate steps to eradicate discrimination against women in marital relationships.

As a result, the State’s failure to recognise Muslim marriages amounts to a constitutional breach of a duty to respect, protect, promote and fulfil the rights of those who enter into Muslim marriages.

Furthermore, the Court stated that it is unreasonable for the State not to enact such legislation when it has the ability to cure systemic rights violations.

The Court declared that the President and his cabinet have failed to fulfil their constitutional obligations to respect, protect, promote and fulfil the rights in sections 9, 10, 15, 28, 31 and 34 of the Constitution. The President and his cabinet, together with Parliament were directed to rectify the failure within 24 months from the date of judgment, to enact legislation to recognise marriages solemnised in accordance with the tenets of Sharia law (Muslim marriages) and that should such legislation not be enacted within the 24 month period, marriages solemnised in terms of Sharia law may be dissolved in accordance with the Divorce Act 70 of 1979, provided that section 7(3) of the Act will apply to such unions.

The positive effect of this judgment will be that women entering into Muslim marriages will now be able to enjoy the same rights and legal protection as those entering into civil marriages, customary marriages, and civil unions. Furthermore, religious and cultural tribunals or religious decision-making bodies that aim to assist women will now have the powers to ensure that the rulings they make are implemented.

The order made by the court is most likely to be implemented without any further delay by the State as it was found that the matter does not fall within the ambits of section 172(2)(a) of the Constitution and therefore would not be referred to the Constitutional Court for confirmation.

 

Article written by: Njabulo Kubheka

 

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