Islamic marriages and divorce under South African law with reference to the Women's Legal Centre Trust v President of the Republic of South Africa 2022 (5) SA 323 (CC)

Abstract

The issue of Islamic marriages and divorce within the South African legal framework has gained increasing attention over the past decade, primarily due to the historical lack of legal recognition and regulation of Muslim marriages. This study investigates the legislative developments that followed the landmark case of Women’s Legal Centre Trust v President of the Republic of South Africa (hereinafter referred to as the WLCT judgment), in which the Constitutional Court declared the non-recognition of Muslim marriages under the Marriage and Divorce Acts to be unconstitutional. The study critically examines how the WLCT judgment and the subsequent amendment of the Divorce Act have reshaped South Africa’s legal landscape by formally recognising Muslim marriages and regulating their dissolution. It further analyses the provisions of the proposed Marriage Bill and explores how Islamic family law, particularly in the context of marriage and divorce, can be accommodated within South Africa’s secular legal framework without compromising Shariah principles or constitutional rights. Employing a qualitative, desktop-based methodology, the study draws on primary and secondary legal sources, including case law and comparative insights from Malaysia’s Islamic Family Law Act. The findings reveal that while legislative reforms represent significant progress, challenges remain in harmonising Islamic legal norms with constitutional imperatives such as gender equality and dignity. The study concludes by recommending context-sensitive reforms, including the incorporation of Shariah-compliant mechanisms and culturally informed legal processes, to ensure equitable treatment of Muslim families within South Africa’s plural legal system.