Portfolio Committee on Justice and Correctional Services Passes Divorce Amendment Bill for Muslim Marriages

CAPE TOWN – The Portfolio Committee on Justice and Correctional Services has officially passed the Divorce Amendment Bill, targeting issues specifically related to Muslim marriages.

According to Parliament of South Africa, Mr Bulelani Magwanishe, the Committee Chairperson, outlined the bill’s objectives, which include amending the Divorce Act to introduce a definition of a Muslim marriage, ensuring the protection and safeguarding of interests of dependent and minor children in Muslim marriages, facilitating the redistribution of assets upon the dissolution of a Muslim marriage, and addressing the forfeiture of patrimonial benefits in such marriages.

The bill enables individuals in Muslim marriages to seek divorce through civil law channels, although it does not replace or constitute an Islamic divorce. Mr Magwanishe emphasized that those desiring a religious divorce would still need to adhere to Islamic law.

This legislative change is a direct response to the Constitutional Court’s decision in Women’s Legal Centre Trust v President of the Republic of South Africa and Others [2022] ZACC 23. The Court highlighted the necessity of protecting Muslim women and children in Muslim marriages, especially upon the marriage’s dissolution. Previously, individuals married solely under Islamic law were deprived of the right to seek a divorce decree from a court of law.

The Court identified inconsistencies in the Divorce Act of 1979 with sections 9, 10, 28, and 34 of the Constitution. Specifically, it pointed out that the 1979 Act failed to protect minor or dependent children of Muslim marriages, did not provide for asset redistribution upon the dissolution of a Muslim marriage, and neglected to address the forfeiture of patrimonial benefits in such cases. The government and Parliament were given until 28 June 2024 to rectify these constitutional discrepancies, with interim measures in place until then.

Mr Magwanishe also mentioned the consideration of the Divorce Amendment Bill [B-32 – 2022], a Private Members Bill introduced by Hon MGE Hendricks on 2 December 2022. Aimed at addressing the same constitutional defects, this bill shares similar provisions with the government’s bill. Ultimately, the committee chose to proceed with the government’s bill while incorporating content from the Private Members Bill where feasible.