Samantha holds various degrees from the University of Cape Town and has a keen interest in writing, research, and socio-legal analysis. As of February 2024, she is responsible for writing, editing, and or proofreading new and refurbished STBB content, including all social media posts, newsflashes, external articles, tender documents, capability statements, internal and external newsletters, legal updates and presentations, new employee bios, webinar and podcast descriptions, mailers, and advertisements.

STBB Newsflash | A New Dawn for Muslim Marriages: Historic Divorce Amendment Act Signed into Law

Last week, President Ramaphosa signed the much-awaited Divorce Amendment Act* (‘DAA’) into law. DAA, which amends various provisions of the Divorce Act to provide for the dissolution of Muslim marriages, is a significant milestone in aligning South Africa’s family law framework with the transformative objectives of the Constitution.

Historically, marriages concluded under the precepts of Islamic law were not recognised by South African law. Predictably, this left spouses in such unions – particularly women – without legal recourse in the event of divorce, and subverted the interests of minor and dependent children born of Muslim marriages. The amending legislation was first tabled in Parliament in 2023 following the landmark ruling in Women’s Legal Centre Trust v President of the Republic of South Africa and Others by the Constitutional Court. In that case, the country’s apex court declared sections 6, 7(3), and 9(1) of the Divorce Act – along with various provisions under the Marriage Act – unconstitutional to the extent that these provisions failed to recognise the validity of Muslim marriages which had not been formally registered as civil marriages. Specifically, the Court found that the Divorce Act violated the constitutionally enshrined rights to equality, human dignity, and access to the courts, and did not give effect to the paramountcy of the ‘best interests of the child’ standard. The Court gave Parliament 24 months to rectify these statutory defects.

During parliamentary deliberations, legislators particularly criticised the infringement of the fundamental rights of women in Muslim marriages – and the children of those marriages – in the context of divorce. Against this socio-legal backdrop, DAA addresses the critical need to safeguard the interests of Muslim women and minor or dependent children of Muslim marriages in facilitating the realisation of ‘a more just and equal society’ built on inclusivity, diversity, and respect for human rights.

To that end, DAA introduces various changes to the legislative regime:

First, DAA expressly incorporates a definition of a ‘Muslim marriage’ as ‘a marriage entered into or concluded in accordance with the tenets of Islam’ to expand the protective reach of the Divorce Act.

Second, it extends the application of the law to the dissolution of Muslim marriages by amending section 3 of the Divorce Act, which regulates the dissolution of civil marriages and provides for grounds of divorce, including the irretrievable break-down of a marriage, and the mental illness or continuous unconsciousness of a party to a marriage.

Third, DAA recognises the interests of minor and dependent children born of Muslim marriages by amending sections 6(1) and (3) of the principal Act. Section 6(1)(a), which precludes a court from granting a decree of divorce unless it is satisfied that the welfare of the minor or dependent children born of a marriage is not prejudiced – in the circumstances – by its dissolution, has been extended to include minor or dependent children of Muslim marriages. Section 6(3) of the Divorce Act, which empowers a court hearing a divorce to make any order it deems fit having due regard to the maintenance of a dependent child of the marriage and the custody, guardianship of, or access to, a minor child of the marriage, is similarly widened to incorporate minor and dependent children of Muslim marriages.

Fourth, it expands section 7 of the principal Act, which regulates the proprietary consequences of divorce and provides for spousal maintenance. To give effect to the Constitutional Court’s ruling, DAA inserts a new subsection – section 3A – to extend the scope of the Divorce Act by providing for the redistribution of assets on the dissolution of a Muslim marriage. Significantly, it introduces an additional factor that a court must consider when adjudicating an application for the redistribution of assets in respect of marriages concluded out of community of property, namely the existence of ‘any contract or agreement between the parties in a Muslim marriage, where the husband is a spouse in more than one Muslim marriage’.

Fifth, DAA amends section 9(1) of the principal Act to permit an application for the forfeiture of patrimonial benefits by one party to another on the dissolution of a Muslim marriage under the same terms as civil marriages. In these instances, the courts will consider the duration of the marriage, the specific circumstances giving rise to the breakdown of the marriage, and evidence of ‘substantial misconduct’ by either party to ultimately determine whether one party will unduly benefit if an order for forfeiture is not granted.

Finally, the Divorce Act now applies to all subsisting Muslim marriages, including those which subsisted as of 15th December 2014 and were later terminated under the tenets of Islam, and in respect of which legal proceedings have been formally instituted – but not yet finalised. Signifying Parliament’s reluctance to unjustifiably limit the right to freedom of religion guaranteed under section 15 of the Constitution, DAA does not interfere with the processes of Islamic divorce nor does it regulate the substantive contents of Sharia law. Accordingly, persons who are in Muslim marriages and elect to pursue a religious divorce may still do so.

Although Parliament has complied with the order of the Constitutional Court in Women’s Legal Centre Trust to amend the impugned provisions of the Divorce Act, the promulgation of a single statute regulating all marriages is ongoing. With the suspension period scheduled to expire on 27th June 2024, and given the complexity of the proposed Marriage Bill, this new law is unlikely to be passed in time. The government has thus urgently applied for an extension to allow the legislative process to run its course. Indeed, the eventual passing of the Bill may precipitate further amendments to the Divorce Act.

Our highly capable and experienced family law specialists have the knowledge and skill set to advise on any family law-related matter, including post-divorce and relocation disputes, variation of maintenance agreements and parenting plans, and complex proprietary disputes.

For assistance, please get in touch with our experts at familylaw@stbb.co.za.

*At the time of writing, DAA had not yet been gazetted and no commencement date was announced.

For the best legal advice and personalised service, let's talk
Subscribe to our monthly newsletters, subscribe