The Departments of Justice, Correctional Services and Home Affairs have faced a roadblock to creating new marriage and divorce laws in South Africa – and if they are not resolved soon, the country will face a major legislative mess.
The Divorce Amendment Bill seeks to amend the Divorce Act 1997 and provide a legislative framework for Muslim marriages in South Africa.
The Constitutional Court ruled in June 2022 that the divorce law is unconstitutional because it does not recognize Islamic marriage.
ConCourt suspended the constitutional invalidity for 24 months from the date of the order to allow the Cabinet and the President to address issues in existing legislation.
Although the court said that provisional measures would be taken, The bill must be introduced before the pending nullity is declared and the provisional measures expire.
The ministry said in the Justice and Correctional Services Portfolio Committee that The new bill should go into effect by June 28, 2024 – Unlike that, There will be no divorce legislation in South Africa.
The Court also noted that the Marriage Law is unconstitutional because it does not recognize Muslim marriage as a civil marriage.
Hence, the Departments of Home Affairs and the Department of Justice and Correctional Services are working together to ensure that they are able to address errors in their bill amendments.
However, despite the desire of both parties to align timeframes and policy approaches as closely as possible, it has become clear that It will not be possible to parallel timing the two new bills.
The Department of Justice and Corrective Services said the early rise of Parliament next year due to national elections and the short time it took Parliament to process the two bills made it impossible to introduce the two bills simultaneously.
Changes in bills
Although the amendments to the divorce and marriage laws are interrelated, not all changes are consistent between the laws.
The new divorce law amendments focus primarily on Islamic marriage and include the following five major amendments:
- Introduce a new definition of Muslim marriage which is recognized by the Constitutional Court ruling to be part of common law in South Africa.
- Amends Article 6 of the Divorce Law by providing protection mechanisms for minors or dependents in an Islamic marriage.
- Amends Article 7 of the Divorce Law by enabling the court to issue a judgment of divorce on the dissolution of a Muslim marriage to issue an order regarding the redistribution of assets.
- Amends Article 9 of the Divorce Law to enable the court when a divorce is granted a decision on the annulment of an Islamic marriage to issue an order for forfeiture of the inheritance benefits of an Islamic marriage under the stipulated conditions
- Provides for the short title and initiation of the act.
The proposed definition of Muslim marriage in Section 1 of the Divorce Amendment Bill also includes a provision for “family counsel.”
Whereas, the Marriage Amendment Bill also considers many other areas related to marriage and aims to combine the Marriage Law, the Commonwealth Marriage Recognition Law and the Civil Union Law under one legislative umbrella.
Some of the significant changes proposed for the new marriage legislation also include:
- Enabling legal marriage for South Africans of different sexual orientations, religions and cultures.
- Applying strict rules for the age of marriage, and harmonizing them with the Child Law.
- Harmonizing legislation on marriage, marital property and divorce to address issues of marital property and intestate inheritance upon dissolution of marriage.
- Ensure fair treatment and respect for religious and customary beliefs in accordance with Article 15 of the Constitution.
- Processing ceremonies and registration of marriages involving foreign nationals.
- Addressing the ceremony and registration of customary marriages involving non-citizens, particularly transnational communities or nationals of neighboring countries.
Members of the public still have the opportunity to voice any complaints with either bill.