AL JAMA-AH’s four amendments to the Divorce Act 1997 have been approved by Cabinet. In 2022 the Party submitted two private members bills to Parliament calling for the recognition of Muslim Marriages and for amendments to the Divorce Act which will afford Muslims legal discourse in matters of dispute. The new Draft Marriages Bill will now be open for public comment.
“In June 2022, the Constitutional Court had found that the Divorce Act in its current form to be inconsistent with the Constitution as it excludes Muslim Marriages. The court found that a section of the Divorce Act is unconstitutional in that it unfairly discriminates against child of married parents and those of unmarried parents,” said Minister in The Presidency Khumbudzo Ntshavheni.
Of the 5 clauses proposed to amend unconstitutional sections of the Divorce Act, the 4 clauses proposed by Al Jama-ah are:
* Clause 1: insertion of a new definition of Muslim marriage recognised by the Constitutional Court Judgement to be part of South Africa’s common law.
* Clause 2: amends section 6 of the Divorce Act by providing safeguarding mechanisms for minors or dependants of a Muslim
* Clause 3: amends section 7 of the Divorce Act by empowering a court to grant a divorce decree on the dissolution of a
Muslim marriage to make an order with regard to the redistribution of
* Clause 4: amends section 9 of the Divorce Act to empower a court when granting a divorce a decree on the dissolution of a
Muslim marriage to give an order that patrimonial benefits of a Muslim marriage be forecited in stipulated
The amendments include Al Jama-ah’s proposed definition of a Muslim marriage under Section 1 of the Divorce Amendment bill: “A marriage concluded in accordance with Islamic Law, that is, Shariah, which regulates all public and private behaviour as derived from traditional customs (Al-Urf), the two primary sources, namely, the Quran and Sunnah (Prophetic model) and that uses juristic tools such as ijma (the consensus) of Muslim Jurists and the individual jurist’s qiyas (analogical deductions) to issue legal edicts.”
The proposed amendments will allow Muslim women to access the divorce court which will give them the same benefits and protection as minor and dependent children in civil marriages. Due to the non-recognition of Muslim marriages, many Muslim families have suffered because of the harm South African legal system has caused as regards Muslim marriages; in these, Muslim wives and their children were often left destitute, homeless, and penniless when the spouse (that is, the husband) dies or agrees to a divorce.