Posted on July 7, 2022
The MJC (SA) welcomes the Constitutional Court judgment handed down on 28 June 2022, where it inter alia declared the Marriage Act 25 of 1961 and the Divorce Act 70 of 1979 to be inconsistent with the South African Constitution as it fails to recognize marriages solemnized in accordance with Sharia law (Muslim marriages) as valid marriages for all purposes in South Africa, and it fails to regulate the consequences of such recognition.
We regard the judgment to be a step in the right direction to the full recognition of Muslim marriages. The Constitutional Court has suspended the declaration of invalidity and has given the President of South Africa and Cabinet, together with Parliament 24 months in order to ensure the recognition of Muslim marriages as valid marriages for all purposes in South Africa and to regulate the consequences arising from such recognition.
MJC (SA) is looking forward to working together with the relevant government structures during the 24 – month period in order to ensure the recognition of Muslim Marriages by Sharia Law as valid Marriages for all purposes in South Africa and to regulate the consequences that arise from such recognition. We highlight that our position is that the consequences of Muslim Marriages must be in terms of Islamic law and not some other law.
It is important to keep in mind that the South African Constitution gives everyone the right to practice all aspects of their religion, and that marriage and its consequences is very much a part of a Muslim’s life.
We advise the South African Muslim Community to seek advice from an Islamic Scholar prior to instituting divorce proceedings based on the interim relief granted by the Constitutional Court.