A long road, but green light finally granted for Divorce Amendment Bill

Published Nov 16, 2023


In welcoming the National Assembly’s green light to the Divorce Amendment Bill as a first step towards the implementation of the Constitutional Court’s judgment, the Women’s Legal Centre (WLC) said it had been a long and challenging journey for thousands of Muslim women to get to this point.

The bill was among four that were passed on Tuesday during a hybrid plenary sitting. They will now be sent to the National Council of Provinces for concurrence.

The Divorce Amendment Bill seeks to amend the Divorce Act following a Constitutional Court judgment in 2022 which declared the bill unconstitutional as it excluded certain provisions and safeguards from Muslim marriages.

Muslim marriages were only recognised in Islamic law and not civil law, meaning that a person could not approach the court of law for a divorce.

This resulted in the failure to protect the interests of Muslim women and children from Muslim marriages.

The Constitutional Court judgment found sections 9, 10, 28, and 34 of the Constitution to be inconsistent and confirmed the Supreme Court of Appeal’s (SCA) order of constitutional invalidity.

The president and the Cabinet, along with Parliament, had 24 months to remedy the defects so as to render the law constitutionally compliant.

According to Parliament, the act failed to provide for the redistribution of assets and to provide for the forfeiture of patrimonial benefits on the dissolution of the Muslim marriage on the same terms as other dissolved marriages.

“The bill seeks to rectify these failures and allow persons in Muslim marriages to get divorced in terms of the civil law. The bill, however, does not constitute or replace an Islamic divorce and persons, who are in Muslim marriages and wish to be granted a religious divorce, will still need to follow Islamic law,” it said.

WLC attorney Charlene May said: “We welcome this as the first step towards the implementation of the Constitutional Court judgment. It has been a long and challenging journey for thousands of Muslim women to get to this point.”

May said they encouraged the Department of Justice to issue directives to advise the clerks of courts of the bill and its content to ensure proper implementation and that Muslim women are given the correct information.

“We further encourage the president to sign the bill into effect without delay. It’s important to note that Muslim women are not required to obtain a religious divorce prior to instituting divorce proceedings as a religious divorce decree is not a requirement to obtain a legal and valid divorce,” May said.

Cape Times