Non-recognition of Muslim marriages unconstitutional, rules ConCourt

The apex court found that the current legal framework has left millions without protection and remedies.

The lack of recognition has been found to be inconsistent with sections, 9, 10, 28 and 34 of the Constitution.

The court in Braamfontein confirmed a ruling of the Supreme Court of Appeal that declared the Marriages Act and Divorce Act unconstitutional.

The pieces of legislation fail to recognize marriages solemnized in accordance with Sharia law.

The Women’s Legal Centre Trust (WLCT) approached the Constitutional Court to confirm the order of invalidity.

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The unanimous judgement was penned by Justice Tlaletsi.

The apex court found the lack of recognition of Muslim marriages infringes on the dignity of Muslim women.

“The Constitutional Court found that the differences between people who marry in terms of the Marriage Act and people who marry according to Sharia law deprive Muslim women and their children of the remedies and protection they would otherwise be afforded if the marriage had been concluded in terms of the Marriage Act.”

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The apex court held that there's no justification for the differentiation.

Full retrospectivity had not been granted.

“The court held that its order of constitutional invalidity ought to apply to all unions validly concluded as a marriage in terms of Sharia law and subsisting at the date when the WLCT instituted its application in the High Court (15 December 2014),” it said.

The Constitutional Court rejected the argument that there’s an obligation on the state to enact legislation recognising and regulating Muslim marriages.

“Instead, the appropriate course was to challenge the legislation, rather than allege that the state has failed to fulfil a duty to legislate.”