According to The South African Marriage Act of 1961, up until the year 2000, the only marriage considered lawful was civil marriage.
Because Muslim marriages in South Africa do not follow the laws outlined within the Marriage Act, such marriages have never been legally recognised under South African law.
Customary African indigenous marriages, which include polygamy, were given recognition by The Recognition of Customary Marriages Act of 2000. This followed the introduction of the new Constitution in 1996.
Muslim marriages allow husbands to have up to 4 wives. Although this constitutes a polygamous union, Muslim matrimony is not considered indigenous and is therefore not considered lawful.
Furthermore, Muslim marriages follow Sharia Law which is not South African Law. Therefore, Muslim marriage is not registered and results in almost no legal protection or recourse for the wives.
According to Islamic law, a Muslim man can finalise his divorce simply by saying “Talaq” three times. Talaq rules in South Africa are applicable because there is almost no legal recourse for Muslim women and children.
Therefore, the termination of Muslim marriages often results in the women and children being left without a home or any financial support.
In addition, should a man die without a legal will and testament in place, the wife and children of Muslim marriages in South Africa will not be able to legally claim any part of the deceased man’s estate.
An application was made by a woman’s legal centre on August 31, 2018 which called for the legalisation of Muslim marriages in South Africa.
This application was issued to the Western Cape High Court and the case was overseen by Judge Siraj Desai.
Judge Desai subsequently found that those in Muslim marriages were subjected to unfair discrimination and as a result of the lack of action taken by South African President, his cabinet and Parliament, women and children had faced unnecessary suffering.
This lack of action was considered by Judge Desai a serious breach in the Constitution.
Consequently, in September 2018, the President, his cabinet and Parliament were ordered by the Western Cape High Court to amend the law so as to formally and legally recognise Muslim marriages within 24 months.
Additionally, Judge Desai stated that, should the order not be enacted within 24 months, a marriage under the laws of Sharia may be terminated according to the Divorce Act of South Africa and that all provisions made by the Act will apply.
This order was a triumph for the legalisation and recognition of Muslim marriages in South Africa.
To find out more about Muslim marriages in South Africa, or any other matters related to matrimonial law, contact one of our attorneys.
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