Cabinet has approved the submission of the draft Divorce Amendment bill of 2023 to Parliament.
The bill was approved by Cabinet this week and seeks to amend the Divorce Act 1997.
The new bill aims to make changes so as to provide mechanisms to safeguard the welfare of minor or dependent children born of Muslim marriages.
It also aims 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.
These changes come following the Constitutional Court fining in June 2022 that the original Divorce Act was inconsistent with the Consitution as it excluded Muslim marriages.
The Act of 1979 also had a specific sector that unfairly discriminated against children of married parents and those of unmarried parents.
Five key clauses are being proposed to amend unconstitutional sections of the Divorce Act; these include:
- Clause 1 – insertion of a new definition of Muslim marriage recognised by the Constitutional Court Judgment 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 Marriage.
- 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 assets.
- 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 forfeited in stipulated terms
- Clause 5 – provides for the short title and commencement of the Act.
Under section 1 of the Divorce Amendment bill, the proposed definition of Muslim marriage includes a ‘family advocate’:
“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.”
In late 2022, the Al Jama-Ah political party introduced two private member bills to Parliament proposing changes to divorce and marriage laws to include Muslim marriages.
Mogamad Ganief Hendricks, the leader of the party, said that Muslim marriages and homes have suffered and been left broken as a result of not having the same legal remedies available in the Divorce Act upon the end of their marriage.
As a result of South Africa’s wide and diverse population, regulators and legislation are playing catchup in streamlining family law. Current legislation does not regulate some religious marriages such as Muslim, Hindu and other customary practices in some African families.
During the same briefing, the minister announced the Cabinet’s approval of the new Draft Marriages Bill for public comment.
The act seeks to make an ‘umbrella’ marriage policy that makes a universal marriage bill applicable to people of all types.
See the Divorce Amendment bill below:
https://businesstech.co.za/news/wp-content/uploads/2023/06/B32-2022_Divorce.pdf