Discriminatory no longer…
A Constitutional Court ruling in June 2022 found the Divorce Act of 1997 inconsistent with the South African Constitution, as it caused legal disparities and discrimination against the rights of individuals in certain unions. The draft Divorce Amendment Bill of 2023 rectifying the Constitutional Court’s concerns was recently approved by the South African parliament.
The backstory
The existing Divorce Act of 1997 was deemed discriminatory and detrimental to the rights of individuals in Muslim marriages, particularly when it came to divorce and asset distribution. The primary purpose of the Divorce Amendment Bill of 2023 is to ensure the legal recognition and protection of Muslim marriages within South Africa.
The key objectives of the Divorce Amendment Bill of 2023 are:
1. Safeguarding children’s welfare
The bill aims to safeguard the welfare of minor or dependent children born of Muslim marriages, ensuring that their rights and needs are considered during divorce proceedings.
2. Asset redistribution
It provides a legal framework for the redistribution of assets in the event of a Muslim marriage dissolution, including the possibility of the forfeiture of patrimonial benefits.
Summary of the key changes proposed
The bill aims to make the following changes to address these objectives:
- Introduction of a new, court-recognised definition of a Muslim marriage.
- Amendment of Section 6 within the Divorce Act to establish protective measures for minors or dependents within the context of Muslim marriages.
- Amendment to Section 7 of the Divorce Act grants the court the authority to issue directives pertaining to the reassignment of assets during the issuance of a divorce decree within a Muslim marriage.
- Amendment to Section 9 of the Divorce Act allows the court to order the forfeiture of patrimonial benefits of a Muslim marriage under specific terms.
Inclusion of Muslim marriages
The proposed definition of a Muslim marriage in the bill ensures that these unions are recognised under South Africa’s common law. It explicitly states that a Muslim marriage is one conducted according to Islamic law and customs, reflecting the diverse practices of the Muslim community.
Wider implications
The approval of the Divorce Amendment Bill of 2023 underscores South Africa’s commitment to adapting its legal framework to accommodate its diverse population and religious practices. Legislation is evolving to address issues beyond just Muslim marriages, encompassing marriages of various religious and customary practices in South African families.
Draft Marriages Bill
In addition to the Divorce Amendment Bill, Cabinet has also approved the Draft Marriages Bill, which aims to create a universal marriage policy applicable to all South Africans, regardless of their background or religious affiliation. This comprehensive bill seeks to simplify and standardise marriage laws in the country.
In summary…
The current changes to the various acts represent a significant step toward ensuring equitable legal treatment for all South African citizens, including those in Muslim marriages, and streamlining family law to address the diverse nature of our population in South Africa. These changes are vital to reflect the country’s dedication to protecting the rights and welfare of all our people.
By Michael Maré, CFP® FPSA®
B.Com