Women's Legal Centre Trust v President of the Republic of South Africa and Others

The Women's Legal Centre Trust (WLCT) brought an application in the public interest concerning the non-recognition of Muslim marriages (marriages solemnised in accordance with Sharia law) in South Africa. Three matters were consolidated: the WLCT matter challenging the failure to enact legislation recognising Muslim marriages; the Faro matter where Ms Faro was denied inheritance rights after her Muslim marriage was disputed following her husband's death; and the Esau matter concerning pension benefits. The High Court ordered the state to enact legislation within 24 months. On appeal, the Supreme Court of Appeal set aside this order and instead declared the Marriage Act and Divorce Act unconstitutional for failing to recognise Muslim marriages, referring the matter to the Constitutional Court for confirmation. The non-recognition has resulted in women in Muslim marriages being denied benefits such as property division on divorce, inheritance rights, maintenance, and children born of such marriages lacking automatic judicial protection.

• Whether the Marriage Act 25 of 1961 and Divorce Act 70 of 1979 are unconstitutional for failing to recognise Muslim marriages as valid marriages
• Whether the failure to recognise Muslim marriages constitutes unfair discrimination on grounds of religion, marital status and gender under section 9 of the Constitution
• Whether non-recognition infringes the rights to dignity (section 10), access to courts (section 34), and the best interests of the child (section 28)
• Whether sections 6, 7(3) and 9(1) of the Divorce Act are unconstitutional for failing to provide protections to parties to Muslim marriages and children born of such marriages
• Whether the common law definition of marriage is unconstitutional for excluding Muslim marriages
• Whether the state has a constitutional obligation under section 7(2) to enact legislation recognising and regulating Muslim marriages
• The extent of retrospective application of the declaration of invalidity

1. The Supreme Court of Appeal's order of constitutional invalidity was confirmed. 2. The Marriage Act and Divorce Act were declared inconsistent with sections 9, 10, 28 and 34 of the Constitution for failing to recognise Muslim marriages and regulate their consequences. 3. Sections 6, 7(3) and 9(1) of the Divorce Act were declared unconstitutional for failing to provide protections regarding children's welfare, asset redistribution, and forfeiture of patrimonial benefits. 4. The common law definition of marriage was declared invalid to the extent it excludes Muslim marriages. 5. The declarations were suspended for 24 months to allow Parliament to remedy the defects. 6. Pending legislation, Muslim marriages subsisting at 15 December 2014 or terminated but with pending proceedings may be dissolved under the Divorce Act, treated as out of community of property unless agreements state otherwise, with section 7(3) applying regardless of when concluded. 7. From the date of the order, section 12(2) of the Children's Act applies to prospective Muslim marriage spouses, with relevant Recognition of Customary Marriages Act provisions applying mutatis mutandis. 8. The conditional cross-appeal by WLCT and appeals by SAHRC and CGE were dismissed. 9. The President and Minister of Justice must pay WLCT's costs including two counsel.

1. The Marriage Act and Divorce Act discriminate unfairly on grounds of religion, marital status and gender by failing to recognise Muslim marriages as valid marriages, which discrimination is unjustified and violates section 9 of the Constitution. 2. Non-recognition of Muslim marriages infringes the dignity of Muslim women (section 10) by denying them legal protection and leaving them vulnerable to unilateral divorce without safeguards. 3. The failure to provide mechanisms for dispute resolution regarding Muslim marriages infringes the right of access to courts under section 34. 4. Sections 6, 7(3) and 9(1) of the Divorce Act are unconstitutional for failing to provide children born of Muslim marriages with automatic judicial oversight and protections equivalent to those provided to children of other marriages, thereby infringing section 28 (best interests of the child). 5. The common law definition of marriage must be developed under sections 8(3) and 39(2) to include Muslim marriages, as the current definition excluding potentially polygynous marriages is unconstitutional. 6. Section 7(2) does not create an independent obligation to enact legislation where legislation already exists but is constitutionally defective—the appropriate remedy is to challenge the existing legislation through declarations of invalidity. 7. When granting declarations of constitutional invalidity with interim relief, courts should balance the need for retrospective application to remedy past injustices against avoiding disruption to settled arrangements, by limiting retrospectivity to marriages subsisting when proceedings commenced or to pending matters.

1. The Court emphasised that the historical non-recognition of Muslim marriages "belongs to our dim past" and "originates from deep-rooted prejudice on matters of race, religion and culture" reflecting "ethnocentric bias and arrogance" that is a "constitutional anachronism" inconsistent with constitutional values of dignity, equality and freedom of religion. 2. The judgment noted that the Constitution in section 15(3) "foreshadows and authorises legislation that recognises marriages concluded under any tradition or a system of religious, personal or family law" but such legislation for Muslim marriages had not yet been passed. 3. The Court observed that Muslim women often lack meaningful choice to insist on civil marriage registration due to disparate bargaining power and that marriage contracts, while encouraged in Sharia law, are not the norm because women lack means or bargaining power to conclude them. 4. The Court noted that South Africa's international obligations under CEDAW, ICCPR, the Maputo Protocol and SADC Protocol, while not creating directly enforceable rights, inform the interpretation of what constitutes reasonable measures under section 7(2) and the content of constitutional rights under section 39(1)(b). 5. The Court commented that the suggestion that "disgruntled Muslims" or "modernists" should simply marry under civil law if they want recognition ignores the reality of disparate bargaining power and is constitutionally invalid—rights must be made available to all with the choice left to those who do not wish to pursue them. 6. The Court indicated that divergent views on this sensitive matter are reasonable but "from a constitutional point of view, it is only reasonable that rights and benefits must be made readily available to all" and the views of those willing to live under the status quo cannot prevail over extension and protection of constitutional rights to others.

This landmark judgment represents a significant advancement in constitutional recognition of religious and cultural diversity in South African family law. It condemns the historical prejudice against Muslim marriages rooted in colonial attitudes that deemed them contrary to "civilised" practices. The case affirms that the Constitution's guarantee of dignity, equality and freedom of religion requires recognition of Muslim marriages. It places Muslim marriages on par with civil and customary marriages in terms of legal protection. The judgment demonstrates the courts' role in developing the common law to align with constitutional values under sections 8(3) and 39(2). It addresses systemic discrimination against Muslim women and children, recognising their particular vulnerability due to disparate bargaining power and patriarchal structures. The case illustrates the balance between judicial intervention through declarations of invalidity and deference to the legislature by suspending the order to allow Parliament to craft comprehensive legislation. It clarifies that section 7(2) does not create independent obligations to legislate where legislation already exists but is defective—the appropriate remedy is challenging the legislation itself. The judgment has profound implications for thousands of Muslim families in South Africa, providing interim relief while awaiting comprehensive legislative reform. It continues the Constitutional Court's jurisprudence of transforming family law to reflect constitutional values of equality, dignity and recognition of diverse family forms.