Al-Qalam 
The new bill will empower women to assert their rights to maintenance, and also ensure an equitable division of assets, writes Nabeelah Shaikh.
In a significant stride towards gender equality and inclusivity, President Cyril Ramaphosa has enacted a groundbreaking bill that extends legal recognition and protection to Muslim marriages within the country.
Ramaphosa signed The Divorce Amendment Bill into law, which amends the Divorce Act of 1979. The bill now recognises Muslim marriages and safeguards women in the event their marriages become dissolved.
The amendment comes after a 2022 Constitutional Court case was brought against the president of the Republic of South Africa by the Women’s Legal Centre Trust, saying that the act was unconstitutional as it excluded Muslim marriages. The non-recognition of Muslim marriages in civil law meant that a Muslim woman, who is married in terms of Islamic law had no right to seek a divorce from a court.
“The new legislation is a response to this 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,” said Presidential spokesperson, Vincent Magwenya.
Magwenya said the legislation addresses shortcomings in the Divorce Act of 1979 which differentiated between people married in terms of the Marriage Act and people married according to Muslim rites, especially women.
“Currently, Muslim couples who choose to marry according to Islamic law can only be afforded the statutory protection of the South African legal system as it pertains to civil spouses if they, in addition to their marriage under Islamic law, register a civil marriage,” said Magwenya.
He said the amendments enacted by the President now provide for a definition of a Muslim marriage in the Divorce Act of 1979.
“This includes the protection and safeguarding of the interests of dependent and minor children of a Muslim marriage; the redistribution of assets on the dissolution of a Muslim marriage; and forfeiture of patrimonial benefits of a Muslim marriage,” said Magwenya.
The bill has been welcomed by several organisations, who for a long time, have been fighting for it to be amended.
The Muslim Personal Law Network (MPL Network) South Africa hailed the enactment of the bill as a watershed moment in the quest for gender equality and access to justice for Muslim women.
“It’s long overdue, it’s almost 30 years in the making from the birth of a new constitution to a rainbow South Africa, to Muslim marriages being recognised in legislation. It’s huge and we welcome the ascent of the Divorce Amendment Act,” said MPL Network Chairperson, Ayesha Royker.
Empower
She said by incorporating Muslim marriages into the legal framework governing divorce proceedings, the amendment will empower women to assert their rights to maintenance and equitable division of assets, even in cases where traditional judicial bodies or uncooperative spouses have failed to uphold their rights.
“The amendments effectively enable our courts to intervene in Muslim divorce matters and to provide women with recourse in seeking maintenance and their right to money and the redistribution of assets,” said Royker.
Royker said this will be especially valuable when the Muslim judicial bodies or intransigent husbands have failed to ensure the divorce rights of Muslim women.
“This legislation addresses the legal exclusion of Muslim women from the benefits of democracy, namely, to be seen by the law and to access the legal justice system for divorce. It addresses constitutional discrimination against divorced Muslim women, who we hope will also approach the courts to enforce divorce settlements,” said Royker.
Royker said on two previous occasions, the Constitutional Court has come to the aid of Muslim women in matters relating to intestate succession.
“The legislature on those occasions amended the Intestate Succession Act to read in Muslim marriages, allowing Muslim spouses to claim from their deceased spouses’ estates in monogamous and polygamous marriages.
On this occasion, we note the similar approach taken by the legislature by reading Muslim marriages into the Divorce Amendment Act.
These incremental developments pave the way for ensuring Muslim women may exercise their rights to claim from estates and now also assets in divorce proceedings,” said Royker. She said bringing Muslim women into the system will also make more apparent the challenges already in the divorce courts.
“And so, our next goal is to enable equitable systems and mechanisms for divorce and the subsequent maintenance of children born of Muslim marriages included in this amendment,” said Royker.
