Non-recognition of Muslim marriages a violation of women and children's rights: Supreme Court of Appeal

Women married under Sharia law now enjoy the full protection of SA law.

The Supreme Court of Appeal (SCA) has upheld a 2018 ruling of the high court in Cape Town which declared non-recognition of Muslim marriages unconstitutional. The court described the non-recognition of these marriages as a “travesty and a violation of the constitutional rights of women and children in particular”.

The high court found that the president and the cabinet had failed to fulfil their constitutional obligations. Litigants complained that their marriages were not recognised under the Customary Marriages Act.

The erstwhile husband of one of the litigants was able to dissolve their marriage without her consent. She was hounded out of her matrimonial home after the spouse died and “forced to live in shelters”. The minor children were removed from her care.

Her plight was compounded when the master of the high court removed her as the executor of her husband’s estate because the Muslim Judicial Council did not view her as the deceased’s wife.

The president and the justice minister took the high court ruling on appeal to the SCA. Complex and protracted litigation ensued after the NGO Women’s Legal Centre (WLC), which represented the litigants, cross-appealed.  

“The recognition of marriages solemnised according to the tenets of the Islamic faith [Muslim marriages] lies at the heart of this appeal,” read the SCA judgment on Friday.

“Muslim marriages have never been recognised nor regulated by SA law as valid marriages despite 26 years under a democratic constitutional dispensation that is founded, inter alia, on the values of ‘[h]uman dignity, the achievement of equality and the advancement of human rights and freedoms’. This is, understandably, both an emotive and contentious issue.”

According to the SCA, the “pre-constitutional era courts” refused to recognise Muslim marriages, mainly, because they were viewed as “potentially polygynous. A scornful and offensive attitude towards persons married in terms of Sharia law prevailed.” This resulted in the suffering of Muslim women and children.

“What this court has done is craft an effective and comprehensive order in an endeavour to cure the hardship suffered by parties to Muslim marriages, especially vulnerable women and children, that will operate until appropriate legislation is put in place,” the judgment read.  

“The importance of recognising Muslim marriages in our constitutional democracy cannot be gainsaid. In SA, Muslim women and children are a vulnerable group in a pluralistic society such as ours. The non-recognition of Muslim marriages is a travesty and a violation of the constitutional rights of women and children in particular, including, their right to dignity, to be free from unfair discrimination, their right to equality and access to court.

“Appropriate recognition and regulation of Muslim marriages will afford protection and bring an end to the systematic and pervasive unfair discrimination, stigmatisation and marginalisation experienced by parties to Muslim marriages including, the most vulnerable, women and children.”

The court ordered the president and the minster to pay the legal costs. Charlene May, an attorney at the WLC, welcomed the ruling.

“As WLC we welcome the further recognition given to the rights of Muslim women by the SCA, the acknowledgment that they have been historically discriminated against and that the state does have a legal obligation to address this discrimination,” said May.

“The SCA has confirmed that the none recognition and the continuation of non-recognition is discriminatory in terms ... the constitution, which requires that all persons are equal before the law and in practice and that you cannot be discriminated against based on your religion, gender, sex or marital status.”

She added: “Muslim women face such discrimination and the court found that a duty exists on the state to either amend the existing legislation in terms of marriages or enact new legislation that recognises and regulates Muslim marriages.

“Important to note for women is that interim relief has been granted by the SCA that is more favourable than that which the high Court granted. The court has ordered that during the 24 months that the state has to adopt new/amend legislation Muslim women will be able to come to the divorce court in terms of the Divorce Act to seek a divorce.”

May said the women will be entitled to claim maintenance as spouses. The court ruled that Muslim marriages will be treated as in community of property for the purposes of the distribution of the joint property unless there is a contract dealing with the division of property.

“This interim measure will take effect for those women who are in valid Muslim marriages and those who have already instituted legal proceedings, but who have not had their matters dealt with,” said May.

“This interim relief is important to so many women in SA currently who have their rights denied because they have not had legal remedies in the way that other women have had. The interim relief like the rest of the order is subject to the Constitutional Court proceedings and is therefore not immediately in effect. We also know that legislative development undertaken by the state has been ongoing for decades and so it is important for Muslim women to have this interim measure.”

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