On 9 May 2024, President Cyril Ramaphosa signed the Divorce Amendment Bill into law, which introduced a meaningful change in respect of Muslim divorces in South Africa.

The amendment to the Divorce Act of 1979 came about as a result of the Constitutional Court decision in the matter between Women’s Legal Centre Trust v President of the Republic of South Africa and Others (2022). The Constitutional Court firmly held that they ‘‘… are concerned about the hardships faced by Muslim Women in a Muslim marriage as a consequence of being excluded from the benefits derived from the Marriage Act and the Divorce Act.’’

After considering the various elements of discrimination, the Court established that the Act was unconstitutional to the extent that it failed to recognise marriages solemnised in accordance with Sharia law which have not been registered as civil marriages for all purposes in South Africa.

The Bill accordingly:

• Confirms the broadening of the definition of a common law marriage to include Muslim marriages.
• Provides mechanisms to safeguard the welfare of minor or dependent children born of a Muslim marriage when such marriage is dissolved.
• Empowers a Court granting a decree of divorce on the dissolution of a Muslim marriage with the discretion to make an order in respect of the redistribution of assets when such redistribution would be just.
• Empowers a Court to make an order that the patrimonial benefits of a Muslim marriage must be forfeited by one party in favour of the other, either wholly or in part.

This is a gratifying change as the Bill has ensured that the identified gaps, in respect of Muslim marriages, are closed.

Should you wish to find out more, contact our offices to schedule a consultation to speak our specialist family law attorneys.

Telephone: +27 31 570 5334, email: adrienne.oliver@gb.co.za