Authored By: GABRIEL NGONIDZASHE ZIMUNYA
GABRIEL NGONIDZASHE ZIMUNYA
- INTRODUCTION
South Africa’s secular legal system failed to acknowledge marriages solemnised under Sharia law by statute for nearly a century. The lack of institutional recognition meant that women and children were often left unprotected when unions broke up due to death or divorce. This statutory silence directly infringed upon fundamental constitutional guarantees, including equality, human dignity, the best interests of the child, and access to courts under the Constitution.[1]
A historic shift occurred when the Constitutional Court handed down its landmark judgment in Women’s Legal Centre Trust v President of the Republic of South Africa, declaring the Marriage Act and the Divorce Act unconstitutional.[2] While the legislature has since enacted the Divorce Amendment Act 1 of 2024 to provide an interim shield, broader statutory codification remains stalled.[3] First, the article explains the transitional legal regime, then it critically examines remaining ambiguities concerning matrimonial property and evaluates recent jurisprudential challenges to traditional exemptions.
- The Post-Women’s Legal Centre Trust Constitutional Landscape
The institutional structure of Muslim marriages is being constitutionally transformed. Before 2022, the absence of statutory recognition meant that Muslim unions were valid as a matter of contract but were not automatically enforceable in the same way as civil marriages under the Marriage Act 25 of 1961.[4] This position remained the case regardless of preliminary judicial interventions such as Daniels v Campbell,[5] which recognised Muslim spouses for intestate succession and Amod v Multilateral Motor Vehicle Accidents Fund, which recognised the legal duty of support.[6]
It marked a historic change when the Constitutional Court in Women’s Legal Centre Trust suspended its declaration of unconstitutionality for 24 months to allow Parliament to remedy the defect in legislation.[7] The Constitutional Court in Speaker of the National Assembly v Women’s Legal Centre Trust further extended this suspension until 27 June 2026 to allow for meaningful public participation on the forthcoming, omnibus Marriage Bill, due to the operational complexity of integrating different marriage regimes into one system.[8]
To remedy the immediate legal vacuum, the legislature has passed the Divorce Amendment Act, which effectively brings Muslim marriages into the formal framework of the Divorce Act.[9] The executive institutions have also followed suit; for example, the Department of Home Affairs issued a permanent directive granting status to certified Muslim marriage officers, which did away with the discriminatory five-year renewal policy.[10] Yet, even with these laudable milestones, the framework remains a transitory hybrid model of judicial reading-in as opposed to a clean, omnibus statutory code.
- Outstanding Uncertainties of Ownership and Enforcement
The primary consequence of this incremental, multi-stage legislative process is the persistence of profound proprietary ambiguities. Because a definitive, specialised statutory act does not yet exist, the Constitutional Court read in an interim measure dictating that Muslim marriages be treated as if they are automatically “out of community of property” unless an explicit antenuptial contract dictates otherwise.[11] This judicial presumption generates immediate tension when contrasted with Islamic marital practices and the economic vulnerabilities faced by dependent spouses.
Under Section 7(3) of the Divorce Act, a court may order an equitable redistribution of assets upon divorce. However, this remedy typically entails protracted and expensive litigation, requiring the claimant to demonstrate direct or indirect contributions to the other spouse’s estate.[12] In Y.M v S.P, the Western Cape High Court had to deal with the financial consequences of an Islamic marriage without a civil contract. The case shows how difficult it is for secular courts to balance religious duties, such as nafaqah (maintenance under Surah At-Talaq 65:7), with civil law principles.[13]
By making vulnerable women depend on judges’ discretionary asset redistribution rather than a clear and accessible property system, the current framework raises the cost of seeking justice, cutting against the constitutional right of access to courts under Section 34.
- The Talaq Loophole and Rule 43 Jurisprudence
The risks of relying on limited statutory remedies become clear when traditional religious practices attempt to bypass secular protection. A key point of conflict has been the use of talaq, a husband’s unilateral divorce under Islamic law. Litigants often argue that once an irrevocable talaq is declared and confirmed religiously, the marriage ends, preventing civil courts from granting interim financial relief or maintenance.[14] In the matter E.S v H.Z.A, the respondent argued that civil courts lacked jurisdiction under Rule 43 of the Uniform Rules of Court because the marriage had already been terminated under Sharia law before the civil action.[15] The High Court dismissed this claim, holding that a private religious divorce cannot override or bypass secular divorce law. It further clarified that the term ‘spouse’ in Rule 43 must be interpreted broadly to include parties to a Muslim marriage, even where a prior talaq has been pronounced.[16]
The court further held that parties cannot, by private agreement or acquiescence, waive the statutory protections and judicial oversight embedded in Section 7 of the Divorce Act.[17] While E.S. v. H.Z.A, marks a significant victory for public interest litigation, it also exposes systemic fragility: in the absence of a unified code, vulnerable citizens remain reliant on costly, high‑stakes litigation to safeguard their constitutional rights
- CONCLUSION
South African courts and lawmakers have made important progress in addressing the historic marginalisation of Muslim marriages. The Women’s Legal Centre Trust ruling broke decades of non‑recognition, and reforms such as the Divorce Amendment Act of 2024 and key judgments on interim maintenance have closed major loopholes that left spouses vulnerable. Still, these incremental changes provide only partial protection, leaving gaps that continue to expose families to risk.
The unresolved uncertainties around default property regimes and the lack of a clear registration system reveal the limits of piecemeal governance. True constitutional compliance cannot be achieved through scattered litigation or fragmented amendments. Parliament must urgently complete its public consultation and enact a unified Marriage Act that codifies property rights, registration rules, and the religious dimensions of Muslim unions, ensuring lasting equality and dignity under the law.
BIBLIOGRAPHY
- LEGISLATION
CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996
Divorce Amendment Act 1 of 2024
- CASE LAW
Women’s Legal Centre Trust v President of the Republic of South Africa and Others [2022] 5 SA 323 (CC).
Daniels v Campbell NO and Others [2004] 5 SA 331 (CC).
Amod v Multilateral Motor Vehicle Accidents Fund [1999] 4 SA 1319 (SCA).
Women’s Legal Centre Trust v President of the Republic of South Africa and Others [2022] 5 SA 323 (CC) para 86.
Speaker of the National Assembly and Another v Women’s Legal Centre Trust and Others [2024] 1 BCLR 103 (CC) para 15.
Y.M v S.P (Appeal) [2026] ZAWCHC 164 para 45-48.
E.S v H.Z.A [2026] ZAGPJHC 262 2
Ibid 15
Ibid 90
- JOURNAL ARTICLE
Muneer A and Najma M, “A Brief Analysis of the Judgment in Women’s Legal Centre Trust v President of the Republic of South Africa” [2023] 26 PELJ 42, 43
- SECONDARY SOURCES
Department of Home Affairs, ‘Home Affairs delivers equality for Muslim Marriage Officers’ (Media Statement, 19 March 2026) https://www.gov.za/news/media-statements/home-affairs-delivers-equality-muslim-marriage-officers-19-mar-2026 accessed 4 July 2026
Paulse K, ‘End of a legal loophole: Muslim marriages and access to interim maintenance’ (Daily Maverick, 31 March 2026) https://www.dailymaverick.co.za/opinionista/2026-03-31-end-of-a-legal-loophole-muslim-marriages-and-access-to-interim-maintenance/ accessed 4 July 2026.
[1] Constitution of the Republic of South Africa, 1996, ss 9, 10, 28, 34.
[2] Women’s Legal Centre Trust v President of the Republic of South Africa and Others [2022] 5 SA 323 (CC).
[3] Divorce Amendment Act of 2024, s 1.
[4] Muneer A and Najma M, “A Brief Analysis of the Judgment in Women’s Legal Centre Trust v President of the Republic of South Africa” [2023] 26 PELJ 42, 43
[5] Daniels v Campbell NO and Others [2004] 5 SA 331 (CC).
[6] Amod v Multilateral Motor Vehicle Accidents Fund [1999] 4 SA 1319 (SCA).
[7] Women’s Legal Centre Trust v President of the Republic of South Africa and Others [2022] 5 SA 323 (CC) para 86.
[8] Speaker of the National Assembly and Another v Women’s Legal Centre Trust and Others [2024] 1 BCLR 103 (CC) para 15.
[9] Divorce Amendment Act 1 of 2024, s 2.
[10] Department of Home Affairs, ‘Home Affairs delivers equality for Muslim Marriage Officers’ (Media Statement, 19 March 2026) https://www.gov.za/news/media-statements/home-affairs-delivers-equality-muslim-marriage-officers-19-mar-2026 accessed 4 July 2026
[11] Abduroaf and Moosa, “A Brief Analysis of the Judgment in Women’s Legal Centre Trust v President of the Republic of South Africa” [2023] 26 PELJ 45.
[12] Divorce Act 70 of 1979, s 7(3).
[13] Y.M v S.P (Appeal) [2026] ZAWCHC 164 para 45-48.
[14] Paulse K, ‘End of a legal loophole: Muslim marriages and access to interim maintenance’ (Daily Maverick, 31 March 2026) https://www.dailymaverick.co.za/opinionista/2026-03-31-end-of-a-legal-loophole-muslim-marriages-and-access-to-interim-maintenance/ accessed 4 July 2026.
[15] E.S v H.Z.A [2026] ZAGPJHC 262 2
[16] Ibid 15
[17] Ibid 90
