Divorce Act

Traditionally, couples married under Shariah law were not protected by South Africa’s marriage and divorce laws. This had consequences for the distribution of assets and determination of maintenance on divorce and women and children were particularly vulnerable. The Divorce Act was amended recently to insert a definition of a Muslim marriage, provide for the protection and safeguarding of the interests of dependent and minor children of a Muslim marriage, provide for the redistribution of assets on the dissolution of a Muslim marriage, and provide for the forfeiture of patrimonial benefits of a Muslim marriage.

Marriage Act

Amendments to the Marriage Act are also on the way but have been delayed for further Parliamentary scrutiny. The bill under consideration seeks to simplify and harmonise South Africa’s marriage laws by creating a unified system with a minimum set of requirements for all marriages, regardless of cultural or religious practices. It seeks to eliminate distinctions between different types of marriages, ensuring fair and equal treatment for all spouses.

Hindu marriage

However, the Marriage Act Amendment does not include Hindu marriages, so if the marriage is not compliant with the Marriage Act the wife is not recognised as a legal wife and is not entitled to a share of her husband’s estate on the dissolution of the marriage.

This has been challenged by a case in the Durban High Court and it is likely the legislators will include this consideration in the final review of the Marriage Amendment Act. We await the outcome.

Seek legal advice

At SD Law & Associates, Inc we are experts in divorce and family law. If you need advice about the Divorce Act changes or any aspect of marriage or divorce, whether Muslim, customary, or other faith practice, we can help. Call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Need legal assistance?

Request a free call back