Attorneys should be aware of the changed status of marriages concluded in terms of Sharia Law

Published on October 13, 2022

Women married according to Sharia law and children born from such marriages are subject to severe difficulties upon dissolution of such marriages, either by divorce or death. The fact that such marriages are not recognized by the marriage Act, the Divorce Act and the Recognition of customary marriages Acts infringes on the dignity of Muslim women and children.

For example, when a husband in Muslim marriage obtains a unilateral divorce through the Talaq, this leaves most women without adequate safeguards to obtain the kind of relief granted upon divorce in a civil court.

The High Court of South Africa (Western Cape Division) found that there was a systemic violation of the rights to equality, human dignity, access to courts and children's rights as a result of the non-recognition of marriages concluded in accordance with Sharia law from the above legislation.

In the matter of WOMEN’S LEGAL CENTRE TRUST VS. PRESIDENT OF THE R.S.A. 2022 (S) S.A .323 the Constitutional Court confirmed the High Court and Supreme Court of Appeal’s order of constitutional invalidity of the above legislation with the constitution. The declarations of invalidity were suspended by the apex Court for a period of 24 months in order to allow Parliament to remedy the said defects.

An important aspect of the above finding is that all marriages concluded in terms of Sharia law after 16 December 2014 shall be dissolved in accordance with the Divorce Act. All such marriages shall be treated as if they are out of community of property, except when there is an agreement to the contrary.

COMMENT

C.M. Weiss
Practicing Consultant