Press Release: Court orders State to recognise Muslim marriages
Published by Legal Resources Centre 31 August 2018
For Immediate Release: 31 August 2018
Victory for women married in Muslim marriages as the court orders the State to take steps to recognise their marriages as valid
Today, 31 August 2018, the Western Cape High Court handed down judgment in Women’s Legal Centre Trust v President of the Republic of South Africa and Others relating to the recognition of Muslim Marriages. The Legal Resources Centre represented the Commission for Gender Equality who was admitted as a friend of the Court.
Our intervention was in support of the case, as Muslim women have suffered, and continue to suffer, serious prejudice in marriages as a result of the State’s inaction.
The LRC welcomes the judgment handed down that declared that the State is obliged by section 7(2) of the Constitution to respect, protect, promote and fulfil the rights in sections 9, 10, 15, 28, 31 and 34 of the Constitution to recognise Muslim marriages as valid and to regulate the consequences of such recognition.
The WC High Court found that the President of South Africa and the Cabinet have failed to fulfil these constitutional obligations and must accordingly take steps to rectify this failure within 24 months of the date of the order. Accordingly, the State must prepare, initiate, introduce, enact and bring into operation, legislation to recognise Muslim marriages as valid marriages and to regulate the consequences of such recognition.
Should the State fail to enact legislation as envisaged above, the Court stated that a union, validly concluded as a marriage in terms of Sharia law and which subsists at the time this order becomes operative, may be dissolved in accordance with the Divorce Act 70 of 1979 even after its dissolution (in terms of Sharia Law). All the provisions of the Divorce Act will apply to such a union.
The Court also made provisions for the dissolution of polygamous marriages in a Muslim marriage. In ensuring that those who will benefit from the findings of the Court are made aware of the order, the Department of Justice and Home Affairs must publish a summary of the order widely and without delay.
We are encouraged by the Court’s decision to compel the government to take steps to ensure that the rights of women in Muslim marriages are realised. We celebrate this victory and hope that the state take steps to comply and make what the judgment envisages a reality for women in Muslim marriages.