HFL1501: Addition to Part 1, Learning Unit 2

VERY IMPORTANT:

Please take note of the important recent 2022 decision of the Constitutional Court
regarding the status of Muslim marriages. This decision also forms part of your
HFL1501 study material, and must be studied for assignment and exam
purposes.

You do NOT have to read the entire case (the decision is more than fifty
pages long). For assignment and exam purposes, it is sufficient if you study
the summary we provide below.

However, if you want to read the decision in your own time and for your own
educational purposes, you are welcome to do so. It is available online to download
for free at http://www.saflii.org/za/cases/ZACC/2022/23.html

Women’s Legal Centre Trust v President of the Republic of South Africa and
others [2022] ZACC 23

The Constitutional Court confirmed the decision of the Supreme Court of Appeal in
this matter and held that certain provisions of the Divorce Act 70 of 1979 and the
Marriage Act 25 of 1961 are unconstitutional in that they “fail to recognise marriages
solemnised in accordance with Sharia law (Muslim marriages) … as valid
marriages for all purposes in South Africa”. The Court further found the common-
law definition of marriage unconstitutional and invalid “to the extent that it excludes
Muslim marriages”.
The Court also found certain provisions of the Divorce Act unconstitutional insofar as
it fails to:

• provide remedies for the protection of minor or dependent children born

from Muslim marriages
• make provision for the redistribution of assets upon dissolution of Muslim
marriages

Open Rubric
 • provide for forfeiture of the patrimonial benefits upon dissolution of Muslim
marriages in the same way as it does for other marriages.1
These provisions were found unconstitutional in that it was in conflict with sections 9
(right to equality), 10 (right to human dignity), 28(2) (children’s rights) and 34 (right
to access to courts) of the Bill of Rights (Chapter 2 of the Constitution of the Republic
of South Africa, 1996).
The Court gave government twenty-four months to either amend the existing
legislation or to pass new legislation “to ensure the recognition of Muslim marriages
as valid marriages for all purposes in South Africa” and to allow for the usual
patrimonial benefits to apply to Muslim marriages. In the meantime, the Court provided
interim measures that apply to all Muslim marriages concluded or terminated in terms
of Sharia law before 15 December 2014.

How does this change the current legal position regarding Muslim marriages in
South Africa?
Since 1994, the South African courts have indicated a change in their approach to
Muslim marriages. In the Daniels and Hassam cases, the Constitutional Court made
provision for the recognition of certain specific remedies to spouses within
monogamous and, later, polygynous, Muslim marriages. However, none of these
judgements changed the fact that Muslim marriages concluded in terms of Sharia law
fell outside the standard South African law relating to marriages and therefore that
Muslim marriages did not have the patrimonial benefits of other marriages provided
for by existing law. If a spouse married in terms of Sharia law wanted the same legal
consequences applicable in terms of South African marriage law, that spouse also had
to conclude a civil marriage.
The Women’s Legal Centre Trust decision now radically changes this position as it
declares marriages concluded (or terminated) in terms of Sharia law to be valid
for all purposes.
It will be interesting to see what the new legislation (expected within the next two years)
will look like and how government will ensure that Muslim marriages are put on the
same footing as other marriages.

Does this change the position of Islamic law as a source of law in South Africa?
No. This judgement only changes the legal position concerning Muslim marriages. The
judgement does not change the fact that Islamic law is still not officially

11
You will learn more about marriage law and the legal consequences and remedies of marriages in
the module Family Law. For now, you don’t have to worry if you don’t understand terminology such as
“patrimonial benefits” or “forfeiture of assets”.
recognised as a source of law in South Africa. Such a change will probably require
an amendment of the Constitution itself. Please read again Activity and Feedback 2.2
on page 18 in the Study Guide.