31st August 2018: The Western Cape High Court has issued a judgment declaring that the South African government must recognise Muslim marriages enacted under Sharia law as legally valid within 24 months. The case was brought by SRT grantee the Women’s Legal Centre (WLC).
Religious marriages have no legislative framework governing them in South Africa and are not legally recognised as marriages. As a result there are no legislative protections for people married in religious (including Muslim) ceremonies. This has far-reaching implications for Muslim women who enter into religious marriages, as they do not have the protections offered to women in civil marriages (such as the right to spousal assets or maintenance if the marriage dissolves). Religious or cultural tribunals lack the enforcement powers to ensure rulings are implemented.
The judgment found that the lack of recognition and protection of women in Muslim marriages amounts to discrimination, and that the State’s failure to recognise Muslim marriages is ‘not a single instance, but rather a systemic failure by the State to provide recognition and regulation, potentially affecting millions of people around the country.’ Bearing this in mind, the Court found that in failing to enact legislation the State has failed in its constitutional duty to respect, protect, promote and fulfil the rights of those who enter into Muslim marriages, and that it is unreasonable for the State not to enact such legislation when it has the ability to cure systemic rights violations.
WLC said in a statement, ‘We hope to see the fruits of this judgment in the coming months, and that the State will enact legislation without delay that brings to an end over two decades of systemic human rights violations suffered by Muslim women who entered into unrecognised Muslim marriages.’
Full statement from WLC’s website: http://www.wlce.co.za/womens-legal-centre-trust-v-president-of-the-republic-of-south-africa-others
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