Litigation: Top court rubber stamps recognition of Muslim marriages

The Constitutional Court this week confirmed a SCA ruling, which legally recognizes Muslim marriages, and declares certain sections of the Marriage Act and Divorce Act unconstitutional, reports News24. The Women's Legal Centre Trust approached the Constitutional Court to provide finality on the state's obligation to recognize Muslim marriages, as ordered by the SCA. It said the impugned legislation differentiated between those who marry in terms of the Marriage Act and those who marry according to Muslim rites, especially women. In a unanimous judgment, penned by Acting Justice Pule Tlaletsi, the court found the differentiation amounted to unfair discrimination because it ‘deprives Muslim women and their children of the remedies and protections that they would otherwise be afforded if the marriage had been concluded’. The court said there was no justification for the continuing non-recognition of Muslim marriages. It also said the provisions infringe the right to dignity, access to courts, as well as the principle of the best interest of the child. ‘For these reasons, the court confirmed the order of constitutional invalidity and held that the Marriage Act and the Divorce Act are in constituent with section 9, 10, 28 and 34 of the Constitution, insofar as they do not afford Muslim marriages recognition,’ the court said in the media summary.

In 2018, the Western Cape High Court found the state had a constitutional obligation to recognize Muslim marriages. The state appealed the judgment in the SCA – and lost. News24 reports that during arguments in the Constitutional Court last year, the trust's legal representative, Nazreen Bawa, said: ‘We are asking the court not to close the door on women. Give them the option to exercise their rights. Without this relief, women, who have historically been deprived, will continue to be deprived.’ Advocate Richard Moultrie, on behalf of the HRC, told the court the country had a regional and international law obligation to enact legislation, and it had failed to do so. However, lawyers representing President Cyril Ramaphosa and Justice Minister Ronald Lamola argued the state did not believe there was an automatic right or obligation for it to recognize marriages which were concluded in SA.

The court suspended the order of invalidity for 24 months to enable the President and the Cabinet to remedy the defects, says a Business Day report. The court said the application concerns the persistent non-recognition of marriages solemnized in accordance with the tenets of sharia. It said this has resulted in the infringement of fundamental rights of parties to Muslim marriages‚ and Muslim women and children in particular‚ for far too long. ‘It is a well-known fact that marriages concluded in accordance with the tenets of the Islamic faith have never been accorded recognition as valid marriages in SA‚’ Tlaletsi said in the unanimous judgment. He said the views expressed by the courts historically were that Muslim marriages do not accord with so-called ‘civilized’ religious practices‚ are potentially polygamous‚ are regarded as immoral and not consonant with religion and are thus contrary to public policy. Tlaletsi said because some customary marriages permit polygamy‚ they were also treated as contrary to public policy before 1998. ‘This treatment forced some of the adherents of Islam to dilute or abandon their faith by‚ among other things‚ electing to marry monogamously according to civil law in order for their marriages to be regarded as valid, the judge said. ‘This non-recognition of Muslim marriages continues to date‚ 28 years into our democratic constitutional dispensation‚’ Tlaletsi added. The exclusion of women married according to sharia from the protection provided by the Marriage Act and the Divorce Act is discriminatory, Tlaletsi ruled.

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