Historically, South African law only recognised a civil marriage, generally perceived to be a ‘traditional Christian marriage’ as the only type of marriage worthy of legal recognition, to the total exclusion of all other unconventional marriages. Over the years, as a result of the constitutional dispensation and public policy, other types of marriages have been afforded the same legal recognition as civil marriages, such as the promulgation of the Recognition of Customary Marriages Act 120 of 1998, which afforded equal status to marriages of the indigenous people in accordance with the various and applicable African customs.

A few years later, the Civil Union Act 17 of 2006 was promulgated for the recognition of same-sex partners who wished to enter a marriage but could not do so since the Marriage Act 25 of 1961 is limited to heterosexual relationships. The enactment of the Civil Union Act was necessitated by the case of Gory v Kolver NO and Others (Starke and Others Intervening) 2007 (4) SA 97 (CC), where same-sex partners could not get married and the surviving partner could not be afforded the status of a ‘spouse’ for inheritance purposes and saw the development of the law to allow same-sex parties to enter into a civil union, equal in standing to a civil heterosexual marriage.

Despite the recognition of customary marriages, as well as same-sex marriages, South African law has been slow in recognising marriages entered into in terms of religious tenets only, and this is due to the fact that some of the religious marriages are potentially polygamous to the full discretion of the husband. This is different from customary polygamous marriages as the current spouse of the wife is aware and involved in the process of her husband taking on a second or further wife. The other issue with religious marriages is that they are in conflict with basic human rights, such as equality on the grounds of gender, age, marital status, religion and culture, which rights are protected in ss 9 and 10 respectively of the Constitution.

Although the Constitutional Court cases of Daniels v Campbell NO and Others 2004 (5) SA 331 (CC) and Hassam v Jacobs NO and Others (2009) 5 SA 572 (CC) have emphasised the importance of these basic rights, religious marriages remain largely excluded from the enjoyment and protection like other types of recognised marriages, generally to the vulnerability and detriment of the female spouses in such marriages.

The legislature has intervened, in part, for the protection of the vulnerable spouses in marriages entered into in terms of Islamic tenets, insofar as divorce proceedings are concerned, by the enactment of the Divorce Amendment Act 1 of 2024, which was promulgated on 14 May 2024. The Amendment Act inserts new provisions, as well as updating existing provisions in the Divorce Act 70 of 1979 to include divorce proceedings of this specific type of religious marriage.

In the definitions, a ‘Muslim marriage’ is inserted and described as ‘a marriage entered into or concluded in accordance with the tenets of Islam’, which is the earliest form of recognition of a religious marriage in South African law, without reference to other existing pieces of legislation or extracts thereof. Section 3 is amended to include a Muslim marriage as capable of being dissolved by divorce by an order of court, a move away from the traditional talaq, that is, a Muslim divorce which can be granted by the husband to the wife at his full discretion. The amendment of s 3, therefore, means that both parties to a Muslim marriage have equal standing to enter into divorce proceedings in a court of law.

Section 6 is amended to include minor or dependent children born of a Muslim marriage, particularly in matters relating to maintenance, care, contact and access. Muslim marriages are also included in the redistribution of assets provision by the inclusion of s 7(3A), as well as
s 7(5)(aA), which includes ‘any contract or agreement between the parties in a Muslim marriage, where the husband is a spouse in more than one Muslim marriage’ as a factor to take into account when a court considers an application for the redistribution of assets.

Lastly, s 9, which deals with applications for the forfeiture of benefits, is also amended to include Muslim marriages, a welcome provision to bridge the gap between the well-off spouse and the vulnerable spouse. The Amendment Act applies to all Muslim marriages, marriages where divorce proceedings in terms of the Divorce Act have commenced but have not been finalised and all Muslim marriages subsisting from 15 December 2014 onwards.

In conclusion, the provisions of the Divorce Amendment Act may be brief, but they are an important and a necessary step towards the recognition of religious marriages in an effort to protect the interests of the vulnerable spouse and empower her basic rights to be tangible instead of theoretical.

Vuyo Sobantu LLB (UKZN) is a legal practitioner at Stowell and Co Inc in Pietermaritzburg.

This article was first published in De Rebus in 2024 (December) DR 19.