GROUNDBREAKING RULING ON MUSLIM MARRIAGES

On 31 August 2018 a full bench of the Western Cape High Court ordered that the State is obliged to implement legislation to recognise Muslim marriages and the consequences thereof within 24 months.

Prior to the judgement, a draft bill to legally recognise Muslim marriages was introduced for public comment, but according to the Minister of Justice the bill was widely opposed as being inconsistent with Sharia law and “unIslamic”.

The Women’s Legal Centre Trust, which said it was aimed at providing Muslim women and their children with legal protection upon divorce, approached the court for an order against the President of South Africa and others to provide legislation to govern Muslim marriages and, in particular, to provide legal protection to the women and their children in relation to divorce and inheritance.

The court declared that the president of the country and other respondents had failed in their constitutional obligation and that the state is obliged to respect, protect and promote the rights to dignity, equality, religion, the best interests of the child and access to courts by enacting legislation to recognise Sharia law marriages. The state was given 24 months to rectify this failure, failing which all marriages validly concluded under Sharia law would be dissolved according to the Divorce Act.

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