Changes to Muslim Divorces in South Africa

The Divorce Amendment Bill, bringing changes to Muslim divorces in the country, has been signed into law by President Cyril Ramaphosa after the Constitutional Court found that the Divorce Act of 1979 was unconstitutional because of the exclusion of Muslim marriages.

BusinessTech reported that the non-recognition of Muslim marriages in civil law "meant that a person, especially a woman who is married in terms of Islamic law had no right to seek a divorce from a court". According to Al Jama-Ah leader Ganief Hendricks, Muslim families suffered considerably due to the lack of legal remedies offered in the Divorce Act when he introduced a private member's bill on the issue in 2023.

The Presidency said that "the new legislation is a response to an earlier Constitutional Court judgment which recognised the need for and importance of protecting Muslim women and children of Muslim marriages, particularly when a Muslim marriage is dissolved.". Muslim women were left disadvantaged after a divorce, since under Sharia law, they couldn't enforce maintenance and guard the rights of their children.

What will the Divorce Amendment Bill do?

1. The Divorce Amendment Bill will insert a definition of a Muslim marriage;
   

2. Provide for the protection and safeguard the interests of minor and dependent children born from a Muslim marriage;
   

3. Provide for the redistribution of assets upon the dissolution of a Muslim marriage; and
   

4. Provide for the forfeiture of patrimonial benefits of a Muslim marriage

The Women's Legal Centre (WLC) celebrated this as a victory for Muslim women and children, as the amendment stemmed from the Women's Legal Centre Trust v President of the Republic of South Africa and Others (2022) when they (WLC) filed an application at the Constitutional Court to legally recognise Muslim marriages.