ConCourt confirms marriage act unconstitutional for failing to recognise Muslim marriages

The Constitutional Court (ConCourt) has confirmed a Supreme Court of Appeal (SCA) ruling, which declared the Marriage Act, the Divorce Act and certain provisions of the Divorce Act to be inconsistent with the Constitution in that they fail to recognise marriages solemnised in accordance with Sharia law (Muslim marriages) as being valid.

The Women’s Legal Centre Trust (WLCT) had approached the Western Cape High Court in a bid to have the President and Cabinet prepare, initiate, enact and bring into operation legislation providing for the recognition and regulation of Muslim marriages.

The high court granted the composite relief and held that the president and Cabinet’s failure to enact legislation to recognise and regulate Muslim marriages meant that they had failed to fulfil their constitutional obligations in terms of section 7(2) of the Constitution.

The High court held further that the lack of recognition of Muslim marriages infringes on the dignity of Muslim women and on the rights of the children of Muslim marriages, who are left without the protections available to children of civil and customary marriages upon termination of such marriages.

The president and minister of justice and correctional services took the high court’s decision to the SCA.

Though the SCA held that the non-recognition of Muslim marriages violates the constitutional rights of Muslim women and children, it, however, found that it is parliament that has the responsibility to make laws, while the president and Cabinet merely have a discretionary power to prepare and initiate legislation.

“Therefore, ordering the president and Cabinet to enact legislation on the basis of section 7(2) alone would be an infringement of the separation of powers doctrine,” ruled the court.

In confirming the SCA ruling on Tuesday, the ConCourt held the decision of the SCA that the applicants failed to establish that section 7(2) places an obligation on the state to enact legislation specific to Muslim marriages.

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“The court reasoned that here the state has legislated, albeit in a defective fashion, and, as such, it is not appropriate to make a finding that the state is obliged by section 7 (2) to enact standalone legislation on Muslim marriages. Instead, the appropriate course was to challenge legislation, rather than allege that the state has failed to fulfil a duty to legislate,” ruled the ConCourt.

The ConCourt also did not accede to the full extent of unlimited retrospectivity that the WLCT had requested, saying it could affect the rights of third parties.

“The court found that it was necessary to strike a balance, given that the rights of third parties could be implicated by the relief if full retrospectivity was granted. The court stated that limited retrospectivity would ensure that third parties will effectively have been placed on notice, because from the date the action was launched, they could have known that relief was being sought on behalf of the class of persons to whom relief will be made available,” it said.