The South African legal system has taken a significant step forward in recognising and safeguarding the rights of spouses in Muslim marriages. For decades, Muslim couples whose marriages were concluded solely under Islamic law (Nikah) lacked automatic legal protection under civil law, particularly in matters of divorce, division of assets, and maintenance. The Divorce Amendment Act 1 of 2024 finally bridges this gap by bringing Muslim marriages within the protective fold of the Divorce Act.

This development not only ensures equality before the law but also responds to prolonged constitutional concerns regarding the rights of Muslim women and children in unrecognised marriages. The amendment represents a major advancement in family law and aligns South Africa’s legal landscape with constitutional values of dignity, equality, and access to justice.

Formal Recognition of Muslim Marriages

The amendment introduces a statutory definition of a Muslim marriage, recognising it as a marriage concluded in accordance with Islamic principles. This recognition grants spouses full access to civil courts when dealing with dissolution of the marriage and related disputes. Instead of relying exclusively on religious tribunals, Muslim spouses now have clear recourse to civil remedies in the event of divorce, ensuring predictability and fairness consistent with national legislation.

Divorce and the Role of Civil Courts

One of the most transformative aspects of the Act is the explicit authority granted to civil courts to dissolve Muslim marriages. Previously, the civil system had no jurisdiction to grant divorces for marriages governed only by Islamic law, leaving many spouses with limited legal avenues.

The amendment empowers the courts to issue decrees of divorce for Muslim marriages in the same manner as civil marriages, ensuring that Muslim spouses are not left without legal protection during marital breakdown.

Enhanced Protection for Children

The Act underscores that the best interests of children remain paramount, regardless of the type of marriage their parents entered into. All matters involving custody, guardianship, maintenance, and care of children from a Muslim marriage must now be addressed in accordance with the Children’s Act and the Divorce Act.

This ensures that children born into Muslim marriages enjoy the same rights and protections as those from civil marriages, eliminating historical disparities.

Redistribution of Assets on Dissolution

The courts have been given explicit authority to redistribute assets upon the dissolution of a Muslim marriage. When exercising this power, the court may consider a wide range of factors, including each spouse’s direct and indirect contributions to the estate, their respective roles during the marriage, and any efforts made toward maintaining or enhancing family assets.

This provision is particularly important for spouses who may have made non-financial contributions, such as homemaking or childcare, which historically went unrecognised in unregistered Muslim marriages.

Forfeiture of Benefits

The Act also provides for the forfeiture of patrimonial benefits in circumstances where it would be unjust for a spouse to retain them. In determining this, a court may consider the duration of the marriage and any serious misconduct that may have contributed to its breakdown.

This mirrors the principles applied to civil marriages and ensures that Muslim marriages are treated with the same level of fairness and judicial scrutiny.

Application to Existing and Past Muslim Marriages

A significant feature of the amendment is its retrospective application. The Act applies to:

• All Muslim marriages currently in existence
• Muslim marriages that have been terminated or dissolved in accordance with Islamic law but have unresolved legal disputes
• Muslim marriages where legal proceedings were initiated but not finalised
• Marriages that existed as of 15 December 2014, the date linked to earlier Constitutional Court rulings on the recognition of Muslim marriages

This ensures that spouses who were previously left without legal protection due to the non-recognition of their marriage now have access to remedies.

Conclusion

The Divorce Amendment Act 1 of 2024 marks a pivotal moment for family law in South Africa. By formally recognising Muslim marriages and providing a clear legal pathway for divorce and related matters, the law promotes legal certainty, fairness, and constitutional compliance.

Muslim spouses now have equal access to civil courts for dissolution, asset division, and the protection of children, ensuring that their rights are upheld with the same vigour as those in civil marriages.

This amendment is not merely a legislative change; it is a long-awaited affirmation of dignity and equality for thousands of South Africans whose marriages were previously overlooked by the legal system.