In the recent SCA case, where the President and Minister of Justice were the Appellants, regarding Muslim marriages, the court found that:
1. The Marriage Act and the Divorce Act are declared to be inconsistent with the Constitution in that they fail to recognise marriages solemnised in accordance with Sharia law (Muslim marriages) as valid marriages (which have not been registered as civil marriages) as being valid for all purposes in South Africa, and to regulate the consequences of such recognition.
2. The Divorce Act is inconsistent with the Constitution insofar as it fails to:
a. provide for mechanisms to safeguard the welfare of minor or dependent children of Muslim marriages at the time of dissolution of the Muslim marriage in the same or similar manner as it provides mechanisms to safeguard the welfare of minor or dependent children of other marriages that are being dissolved.
b. provide for the redistribution of assets, on the dissolution of a Muslim marriage, when such redistribution would be just.
c. make provision for the forfeiture of the patrimonial benefits of a Muslim marriage at the time of its dissolution in the same or similar terms as it does in respect of other marriages.
3. The declarations of constitutional invalidity are referred to the Constitutional Court for confirmation.
4. The common law definition of marriage is declared to be inconsistent with the Constitution and invalid to the extent that it excludes Muslim marriages.
5. The declarations of invalidity are suspended for a period of 24 months to enable the President and Cabinet, together with Parliament to remedy the foregoing defects by either amending existing legislation, or passing new legislation within 24 months, to ensure the recognition of Muslim marriages as valid marriages for all purposes in South Africa and to regulate the consequences arising from such recognition.
6. Pending the coming into force of legislation or amendments to existing legislation, it is declared that a union, validly concluded as a marriage in terms of Sharia law and subsisting at the date of this order, or which has been terminated in terms of Sharia law, but in respect of which legal proceedings have been instituted and which proceedings have not been finally determined as at the date of this order, may be dissolved in accordance with the Divorce Act as follows:
a. all the provisions of the Divorce Act shall be applicable save that all Muslim marriages shall be treated as if they are out of community of property, except where there are agreements to the contrary, and
b. the provisions of s 7(3) of Divorce Act shall apply to such a union regardless of when it was concluded.
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