A Muslim wedding party visits Claremont Gardens in Cape Town for a photo shoot. File photo
The Divorce Amendment Bill that seeks to improve the legislative framework for Muslim marriages in the Constitution has been opened for public comment.
In its current form, the Divorce Act of 1997 excludes Muslim women who were married in accordance with Islamic law, the Shariah, and protection for children born from such marriages if they are dissolved.
In 2022, the constitutional court found that a supreme court of appeal (SCA) ruling was invalid and inconsistent with the current act because it failed to recognise Muslim marriages.
The divorce bill, presented by Al Jamah leader Ganief Hendricks, aims to provide mechanisms to safeguard the welfare of minor or dependent children born of Muslim marriages and to provide for the redistribution of assets on the dissolution of a Muslim marriage.
“We are very thrilled that cabinet has accepted the proposals and now it can go for public participation and that it can meet the deadline of June 2024,” said Hendricks.
“It has been an anomaly for the past 30 years that Muslim wives and other religious marriages are not allowed to take their grievances to the divorce court [because the marriages were not recognised] and did not have any legal consequences.”
Hendricks said the amendment would extend to Hindu, Jew and African families who could not previously use the divorce court based on the law.
The bill, which consists of four clauses, further aims to amend section 7 of the Divorce Act to empower a court to grant an order on the redistribution of assets, and an amendment to section 9 to give an order that patrimonial benefits of a Muslim marriage be forfeited in stipulated terms.
In 2018, the Western Cape high court found that the state had a constitutional obligation to recognise Muslim marriages. The supreme court of appeal upheld the ruling.
The constitutional court has given parliament a June 2024 deadline to correct the divorce law. The department of justice has said that written submissions on the Divorce Amendment Bill must be sent to [email protected] before 8 September.