By Clement Marumoagae
The Constitutional Court (hereafter ‘CC’) was called upon to confirm the Supreme Court of Appeal’s (hereafter ‘SCA’) order declaring parts of the Marriage Act and Divorce Act unconstitutional to the extent that they infringed the fundamental rights of parties married in accordance with Muslim law. The Women Legal Centre (hereafter WLC) requested the CC to reinstate the High Court’s order that the state must enact legislation to recognise Muslim marriages. At the SCA, the government conceded that the Marriage Act and Divorce Act infringed upon the constitutional rights to equality, dignity and access to courts of women in Muslim marriages. The SCA was of the view that it was not ideal to order Parliament to enact legislation as that would be an infringement of separation of powers. However, it confirmed that the non-recognition of Muslim marriages is a violation of the constitutional rights of women and children born of Muslim marriages and proceeded to declare parts of the Divorce Act unconstitutional in so far as they did not recognise Muslim Marriages. The SCA refused to order retrospective application of the order of invalidity, thereby leaving it to the legislature to determine the extent to which the legislation that it will enact regarding Muslim marriages should apply retrospectively.
In the confirmation proceedings at the CC, WLC argued that the state’s omission to recognise and regulate Muslim marriages conflicts with section 9(3) of the Constitution because it discriminates directly on the grounds of religion and marital status and indirectly on the grounds of race, gender and sex. Further that Muslim women’s dignity is impaired when they cannot influence decisions of religious bodies which change their marital status. Further that the Constitution imposes a positive duty on the state to provide appropriate protection by taking reasonable legislative means to fulfil this obligation. The state also conceded that the legislation referred to above are inconsistent with the Constitution. However, the state argued that the order of retrospectivity should not affect Muslim marriages that are terminated by death or divorce before the date of the CC’s order. The South African Human Rights Commission submitted that the state is obliged to recognise and regulate Muslim marriages through legislation.
One of the respondents argued that the Marriage Act and Divorce Act do not discriminate against Muslim women and are not unconstitutional. It argued that most Muslim people do not consider the non-recognition of their religious marriages to be discriminatory. Further that the solution to this issue is for those who seek recognition to conclude their marriages in terms of Islamic law, and thereafter the Marriage Act. The Commission for Gender Equality intervened in this matter and argued that women in Muslim marriages suffer a double burden of unfair discrimination based on their gender and religion. It argued that there is a need for the enactment of legislation that would resolve the systematic discrimination against Muslim women in marriages. One of the amicus curie argued that Muslim women usually do not have the bargaining power to get their prospective spouses to conclude marriage contracts that can offer them some protection. Based on these submissions the CC had to determine three issues:
- whether to confirm the SCA’s constitutional invalidity order;
- if the order is confirmed whether the constitutional invalidity should have retrospective effect; and
- whether to force the legislature to promulgate legislation that would recognise and regulate Muslim marriages.
The CC noted that lack of recognition of Muslim Marriages by the Marriage Act continues to deprive women and children born of Muslim Marriages of the remedies and protection that they would be afforded had their marriages been concluded in terms of that Act. The CC held that the exclusion of women married in accordance with Muslim rites from the protection of the Marriage Act and the Divorce Act constitutes unfair discrimination based on gender, religion and marital status. Further that their religious marriages often leave them economically vulnerable because they are burdened with the responsibility to care for children while their husbands acquire the assets in their own names. The court held that there is no justification for the continuing non-recognition of Muslim marriages. Further that the fact that women can choose to conclude Muslim marriages and not register their marriages does not mean that they should not be protected from economic and social hardships they suffer in their marriages. The CC emphasised that women in Muslim marriages must be fully incorporated into the South African community so that they can equally enjoy the fundamental rights afforded by the Constitution. The CC also found that the dignity of women who are party to Muslim marriages was also impaired because they often have little to say when their marriages commence or upon the dissolution of their marriages. Most importantly, the CC held that the state failed to provide dispute resolution mechanisms regarding Muslim marriages, thereby limiting their right to have their disputes resolved by the application of law decided in a fair public hearing.
The court noted that due to lack of recognition of their religious marriages, Muslim women cannot benefit from remedies provided by the Divorce Act such as maintenance orders and forfeiture orders. The court further noted that dependent children also cannot benefit from the provision of the Divorce Act that allow children who have attained the age of majority but not yet self-sufficient to claim maintenance from their parents. Further that not only are children’s rights not provided paramountcy when Muslim marriages terminate but children born of these marriages are unfairly deprived of statutory protection regarding the age of consent. The CC also assessed the constitutionality of the common law definition of marriage. It held that this definition was invalid to the extent that it failed to recognise Muslim marriages, and thus unconstitutional.
The CC was alive to the fact that the order sought by the WLC could have disruptive effect and decided to strike some sort of a balance by stating that its order will apply:
- to all Muslim marriages that were in force as from 15 December 2014, the date WLC launched its application at the High Court;
- marriages no longer existing but proceedings related thereto had been instituted and those that had not been finalised as at the date of its order.
The CC also found that there was no reason to compel the state to promulgate legislation that deals with marriage and divorce because the Divorce Act and Marriages Act were in place, despite their defectiveness, which the court sought to cure by declaring certain of their provisions unconstitutional. The CC confirmed the order of the SCA. We have a highly specialised team that deals will all aspects of divorce law which is ready and willing to assist you in all your divorce disputes. Feel free to contact us.
