Parliament, Wednesday, 1 November 2023 – The Portfolio Committee on Justice and Correctional Services yesterday adopted the Divorce Amendment Bill, which specifically relates to Muslim marriages.
Committee Chairperson Mr Bulelani Magwanishe said the purpose of the Bill is to amend the Divorce Act, to insert a definition of a Muslim marriage, to provide for the protection and to safeguard the interests of dependent and minor children of a Muslim marriage, to provide for the redistribution of assets on the dissolution of a Muslim marriage and to provide for the forfeiture of patrimonial benefits of a Muslim marriage.
Notably, the Bill allows people in Muslim marriages to get divorced in terms of the civil law. It does not constitute or replace an Islamic divorce. “Persons who are in Muslim marriages and wish to be granted a religious divorce will still need to follow Islamic law,” Mr Magwanishe said.
The Bill stems from a court judgement in Women’s Legal Centre Trust v President of the Republic of South Africa and Others [2022] ZACC 23 in which the Constitutional Court recognised the need for and importance of protecting Muslim women in and children of Muslim marriages, particularly on the dissolution of a Muslim marriage. The non-recognition of Muslim marriages in civil law has the effect that a person married in terms of Islamic law only has no right to approach a court of law for a decree of divorce.
The Constitutional Court held that the Divorce Act of 1979 is inconsistent with sections 9, 10, 28 and 34 of the Constitution. In particular, it held that sections 6, 7(3) and 9(1) of the Divorce Act are unconstitutional as they fail to safeguard the interests of minor or dependent children of Muslim marriages in the same manner as children of other marriages on the dissolution of the marriage. The 1979 Act also fails to provide for the redistribution of assets on the dissolution of a Muslim marriage and fails to make provision for the forfeiture of patrimonial benefits on the dissolution of a Muslim marriage in the same terms as other dissolved marriages.
The court then gave the government and Parliament until 28 June 2024 to remedy the constitutional defects and specified measures that will apply pending the amendment of the Divorce Act or the introduction of new legislation. However, these measures lapse at the end of the 24-month period.
Mr Magwanishe stated that the committee also considered the Divorce Amendment Bill [B-32 – 2022], a Private Members Bill introduced by the Hon MGE Hendricks on 2 December 2022 and referred to the committee. The Private Members Bill was also intended to address the constitutional defects identified by the Constitutional Court and its provisions are similar to those found in this Bill. The committee decided to proceed with the Bill introduced by the government and consider the contents of the Private Members Bill before it as far as possible.
ISSUED BY THE PARLIAMENTARY COMMUNICATION SERVICES ON BEHALF OF THE CHAIRPERSON OF THE PORTFOLIO COMMITTEE ON JUSTICE AND CORRECTIONAL SERVICES, MR BULELANI MAGWANISHE.
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