The Constitutional Court of South Africa Tuesday unanimously ruled that the Marriage Act 25 of 1961 and the Divorce Act 70 of 1979 were unconstitutional for their exclusion of marriages under Sharia law.
Women’s Legal Centre Trust v. The President and Others concerned a challenge to the constitutionality of the two acts, alleging inconsistency with sections 9 (equality), 10 (human dignity), 28 (child rights), and 34 (access to courts) of the South African Constitution. The Women’s Legal Centre moved the Constitutional Court to confirm the Supreme Court of Appeal’s (SCA) ruling, in which it held that the non-recognition of Muslim marriages violated the constitutional rights of Muslim women and children.
The Constitutional Court confirmed the SCA ruling, saying that the acts “fail to recognize marriages solemnized in accordance with Sharia law (Muslim marriages) which have not been registered as civil marriages, as valid marriages for all purposes in South Africa[.]” It also held that the common law definition of marriage was inconsistent with the constitution with respect to the exclusion of Muslim marriages.
Justice LP Tlaletsi of the Constitutional Court wrote:
Women in Muslim marriages must be fully included in the South African community so that they can all enjoy the fruits of the struggle for human dignity, equality, and democracy. No cogent reasons have been advanced to justify the unfair discrimination. Accordingly, I find that the unfair discrimination against women married under Sharia law is also unjustified.
As a result of this ruling, Muslim women would be able to exercise their “rights to housing, land, and property accumulated in marriage when their marriage comes to an end,” and children born of Muslim marriages would be able to access protection mechanisms during divorce proceedings.
The court suspended the unconstitutionality ruling for 24 months to allow for making amendments to the existing legislation or passing new legislation within the same time.