New marriage and divorce laws coming to South Africa

Home Affairs Minister Aaron Motsoaledi says his department is still developing an executive bill regulating all marriages in South Africa – which is cold comfort to those affected by the drawn-out process.

Speaking before a portfolio committee meeting, Al Jama-ah leader Ganief Hendricks briefed Parliament on the Registration of Muslim Marriages Bill.

The bill has been put forward in an attempt to introduce interim protections to Muslim marriages while the government works on a new umbrella marriage bill for the country.

The bill would make the following provisions:

• The recognition of Muslim marriages
• The requirements for the conclusion of a valid Muslim marriage
• The solemnisation of Muslim marriages
• The registration of Muslim marriages
• The propriety and other consequences of Muslim marriages
• The dissolution of and consequences of dissolution of Muslim marriages
• The automatic repeal upon the promulgation of any final legislation by Parliament, which address the failures identified by the courts.

In June 2022, the Constitutional Court gave a ruling which gave legal status to marriages under Muslim Sharia law.

Muslim women were often left destitute if divorced under Sharia law, as they lacked the power to enforce maintenance and protect their children’s rights.

Hendricks said that the Department of Home Affairs did attempt to comply with court orders regarding Muslim Marriages; however, he added that the department is incorrectly following a Supreme Court Of Appeal ruling.

To address the shortcomings of South Africa’s marriage laws, the Department of Home Affairs issued a circular to all its marriage officers to register Muslim marriages in terms of the Recognition of Customary Marriages Act 1998 with the necessary modifications.

However, Hendricks said that the circular in question is incorrect, outdated and misinterpreted the requirements placed by the Constitutional Court, which is why the Muslim Marriages Bill is necessary.

He said that customary law is defined as the customs and traditions of indigenous African people in South Africa, and it will not provide for the specific application of Shariah law marriages.

An updated circular in line with the Constitutional Court ruling would replace the need for the promulgation of the Registration of Muslim Marriages Bill, he argued. The new proposed circular would provide key administrative steps to ensure the registration of Muslim marriages.

Whether through the circular or the passing the Muslim Marriages Bill, Hendricks said that it was crucial for some form of interim legislation or regulation to be introduced before the department finalised its new bill so that Muslim women are legally protected.

We’re working on it

In response to Hendricks’ points, Motsoaledi said it was unnecessary to continue with Muslim Marriages Bill, as the department is developing an executive bill regulating all marriages in South Africa.

The department’s bill would deal with many of the issues presented by Hendricks.

The department previously said that it would submit its updated Marriage Bill to the cabinet later in the year, with the aim of getting approval from Parliament in 2024.

The minister added that the law currently requires couples, when concluding a marriage, to pick from three matrimonial property regimes: marriage in community of property, marriage out of a community of property with accrual and marriage out of a community of property without accrual.

If the couple does not agree on an antenuptial contract (a prenup), the marriage is regarded as a marriage in a community of property.

However, in the future, there will be no default marriage regime, and couples will have the ability to choose what type of marriage suits them.

The department will also introduce a pro forma prenup contract for couples who can’t afford a notary.

Read: Divorce and pensions – what South Africans need to know