The Departments of Justice and Correctional Services and Home Affairs have hit a roadblock in the creation of the new Marriage and Divorce Laws in South Africa and if it isn’t resolved soon, the country will have a significant legislative mess on its hands. 

The Divorce Amendment Bill seeks to amend the Divorce Act of 1997 and provide a legislative framework for Muslim Marriages in South Africa.

The Constitutional Court ruled in June 2022 that the divorce act was unconstitutional as it did not recognise Muslim Marriages.

The ConCourt suspended the constitutional invalidity for 24 months from the date of the order to allow the Cabinet and the President to remedy the issues in the existing legislation. 

Although the court said that interim measures would be in place, the Bill has to be introduced before the suspended declaration of invalidity and interim measures lapse. 

At a portfolio committee on Justice and Correctional Services, the department said that the new Bill must come into force by 28 June 2024  otherwise, no divorce legislation will exist in South Africa. 

The ConCourt also noted that the Marriage Act is unconstitutional as it fails to recognise Muslim marriages as civil marriages. 

The Departments of Home Affairs and Justice and Correctional Services are thus working together to ensure that they both can remedy the errors in their respective amendments BIlls. 

However, although both parties wanted to align timeframes and policy approaches as far as possible, it has become apparent that the parallel timing of the two new Bills will not be possible. 

The Department of Justice and Correctional Services said the early rising of Parliament next year due to the national elections and the shortened time for Parliament to process both Bills has made it impossible to do both bills concurrently. 

Changes to the Bills 

Although the amendments to the Divorce and Marriage Acts are interlinked, not all of the changes align between the Acts. 

The new Divorce Act amendments primarily focuses on Muslim Marriages and includes the following five key amendments: 

• Insertion of a new definition of Muslim marriage recognised by the Constitutional Court Judgment to be part of South Africa’s common law.

• Amends section 6 of the Divorce Act by providing safeguarding mechanisms for minors or dependants of a Muslim Marriage.

• 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.

• 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

• Provides for the short title and commencement of the Act.

The proposed definition of a Muslim marriage in Section 1 of the Divorce Amendment Bill also includes a provision for a ‘family advocate’.

Whereas, the Marriage Amendment Bill also looks at several other areas relating to marriages and aims to combine the Marriage Act, the Recognition of Customary Marriages Act and the Civil Union Act under one legislative umbrella. 

Some significant proposed changes for the new Marriage legislation also include: 

• Enabling legal marriages for South Africans of different sexual orientations, religions, and cultures.

• Implementing strict age rules for marriage, aligning them with the Children’s Act.

• Aligning marriage, marital property, and divorce legislation to address matters of marital property and intestate succession upon marriage dissolution.

• Ensuring equitable treatment and respect for religious and customary beliefs as per Section 15 of the Constitution.

• Addressing the solemnisation and registration of marriages involving foreign nationals.

• Addressing the solemnisation and registration of customary marriages involving non-citizens, particularly cross-border communities or citizens of neighbouring countries.

Members of the public still have the opportunity to air any grievances in either Bill. 

The Department of Justice and Correctional Services said that written submissions on the Divorce Amendment Bill can be sent to divorce@parliament.gov.za by Friday, 8 September 2023. 

Written submissions on the new Marriage Bill can also be sent to the Department of Home Affairs by Thursday, 31 August 2023 at moses.malakate@dha.gov.za and agnes.molefe@dha.gov.za.