New divorce laws for South Africa take big step forward
The Portfolio Committee on Justice and Correctional Services has adopted the Divorce Amendment Bill.
The new Bill primarily focuses on creating a legislation framework for Muslim Marriages in South Africa by amending the Divorce Act of 1997.
In 2022, the Constitutional Court in Women’s Legal Centre Trust v President of the Republic of South Africa and Others [2022] said that the Divorce Act was conflicting with the Constitution as it excluded Muslim marriages.
The highest court also held that the prior law failed to safeguard the welfare of minor or dependent children of Muslim marriages following a divorce.
“The 1979 Act also fails to provide for the redistribution of assets on the dissolution of a Muslim marriage and fails to make provision for the forfeiture of patrimonial benefits on the dissolution of a Muslim marriage in the same terms as other dissolved marriages,” Committee Chairperson Bulelani Magwanishe said.
The court said that the government and Parliament had 24 months to remedy the defects, with the relief ending on 28 June 2024.
Some of the key amendments in the Divorce Amendment Bill include:
- To insert a definition of a Muslim marriage,
- To provide for the protection and to safeguard the interests of dependent and minor children of a Muslim marriage.
- To provide for the redistribution of assets on the dissolution of a Muslim marriage
- To provide for the forfeiture of patrimonial benefits of a Muslim marriage.
Importantly, the Bill allows Muslim Marriages to end in terms of civil law, but it does not do away with Islamic Divorces.
“Persons who are in Muslim marriages and wish to be granted a religious divorce will still need to follow Islamic law,” Magwanishe said.
Despite Al-Jama Ah leader Ganief Hendricks introducing a Private Members Bill to amend the defects raised by the nation’s highest court, the committee said that it decided to continue with the government’s Bill and engage Hendricks’ Bill as far as possible.
The Divorce Amendment Bill can be found here:
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