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Following the promulgation of the Divorce Amendment Bill, 2023, many South African Muslims have asked a straightforward question: how does this affect my marriage? Basheer Paruk Inc, family law attorneys and certified mediators based in Johannesburg, sets out what has actually changed to date under the Bill, and what it means practically for Muslim couples.
How we got here: the WLCT case
To understand the Amendment, some background helps. Historically, Muslim marriages solemnised by Nikkah — without an accompanying civil marriage — were not legally recognised in South Africa, which carried significant consequences, including the legal status of children born to those marriages.
This changed in 2022, when the Women’s Legal Centre Trust vs President of the Republic of South Africa & Others case granted Islamic marriages formal legal recognition. That recognition brought a divide in opinion within the Muslim community: welcomed by many, while others raised concerns about the legal consequences that would inevitably follow from bringing religious marriages under South African constitutional and statutory law. The Divorce Amendment Bill, 2023 — which amends the Divorce Act, 1979 to include Muslim marriages — is a direct result of that case.
Key changes under the Divorce Amendment Bill
1. Marital regime and distribution of assets The default position for a Nikkah remains an out-of-community-of-property regime. However, under Sections 7 and 9 of the Divorce Act, courts retain a discretionary power to order a redistribution of assets on divorce — even where the marriage is out-of-community of property — where one spouse’s conduct contributed to the marriage breaking down. In effect, the marital regime chosen by a couple does not fully insulate asset distribution from judicial discretion.
2. Seeking an annulment through a secular court Section 3 of the Act now allows Muslim marriages to be dissolved through the South African courts. This means a woman can apply to a secular court for her Nikkah to be annulled, providing an avenue similar in effect to a Fasakh, but through the civil court system rather than an Islamic institution.
3. Suspending a decree of divorce where children are involved Clause 6 of the Divorce Act requires that a divorce decree not be granted until the welfare of minor or dependent children is safeguarded. Muslim marriages now fall within this clause, meaning a court can delay recognising the legal consequences of a divorce until proper arrangements — such as an approved parenting plan covering maintenance and custody — are in place.
4. Regulation of polygamous marriages Both the Divorce Act and the proposed Muslim Marriage Bill introduce requirements around polygamous marriages, including joining other spouses to legal proceedings where a husband intends to take another wife, or where a redistribution of assets is being considered.
5. Claims for maintenance (alimony) Because Muslim marriages previously had no legal recognition, spouses had no standing to claim maintenance from a former husband in a secular court. With legal recognition now in place, this has changed — a spouse can approach a secular court to claim maintenance for a period beyond what is required under Islamic law.
What hasn’t changed
It’s worth noting what the Bill does not alter: a properly issued Talaaq, or a Fasakh correctly obtained through an Islamic institution, remains valid according to Islamic principles regardless of what a secular court rules. A civil court can determine the legal consequences of a divorce — matters like asset division and maintenance — but does not have authority over the religious status of the marriage itself.
Looking ahead
Basheer Paruk Inc notes that further legislative proposals are anticipated, including a potential change to the default marital regime for Muslim marriages. Couples wanting certainty over how their assets are treated are encouraged to seek advice on registering an Antenuptial Contract (ANC) prior to marriage, and to speak to an attorney about how these provisions may apply to their specific circumstances.
Get advice on your matter
Divorce and matrimonial property law can be complex, particularly where religious and secular legal systems intersect. If you have questions about how the Divorce Amendment Bill applies to your marriage, contact Basheer Paruk Inc on 061-625-6070 for a consultation.
Download: The Implications of the Divorce Bill (PDF)
FAQ
Are Muslim marriages legally recognised in South Africa? Yes. Since the 2022 Women’s Legal Centre Trust case, Islamic marriages solemnised by Nikkah are legally recognised in South Africa, and the Divorce Amendment Bill 2023 brings them under the Divorce Act, 1979.
Can a Muslim marriage be dissolved by a South African court? Yes. Section 3 of the Divorce Act, as amended, allows a party to a Muslim marriage to apply to a secular court for the marriage to be dissolved or annulled.
Does a South African court ruling affect the religious status of a Muslim divorce? No. A secular court can rule on the legal consequences of a divorce, such as maintenance and asset division, but the religious validity of a Talaaq or Fasakh is determined according to Islamic principles, independent of the civil court process.
Can a court change how assets are divided even in an out-of-community-of-property marriage? Yes. Under Sections 7 and 9 of the Divorce Act, a court retains discretion to order a redistribution of assets in certain circumstances, regardless of the couple’s chosen marital regime.
