Dissolving a muslim marriage in South Africa and the right to freedom from discrimination: The talaaq v. the Divorce Amendment Act (2024) ‘routes’ in the context of H . A v N . A (February 2025)

Abstract

In February 2024, Parliament passed the Divorce Amendment Act (DAA) to provide for the circumstances in which those who are married according to Muslim law can dissolve their marriages. This was pursuant to a Constitutional Court decision which found that some provisions of the Divorce Act unfairly discriminated against those married according to Muslim law. The DAA commenced on 14 May 2024. It defines a Muslim marriage and provides for, inter alia, the circumstances in which such a marriage may be dissolved and the distribution of assets at the dissolution of the marriage. However, it is silent on whether it replaces the husband’s right to terminate a marriage through talaaq and on the woman’s right to terminate a marriage. In H.A v N.A, the High Court declined to resolve the issue of whether a woman against whom a talaaq has been issued can institute divorce proceedings under the Act. Relying on its drafting history, the author argues that the DAA does not ‘take away’ a husband’s right to terminate a marriage through talaaq. Likewise, it does not take away the woman’s right to terminate a marriage hence guaranteeing the right to equality of the spouses in this regard. It is argued that taking away that right would amount to discrimination on the ground of religion. The DAA is equally applicable to all types of Muslim marriages irrespective of the Islamic denomination (sect).

Introduction

For many years, Muslim marriages were not recognised in South Africa. However, in June 2022 in the case of Women’s Legal Centre Trust v President of the Republic of South Africa and Others, ¹ the Constitutional Court held that the non-recognition of Muslim marriages was discriminatory and unconstitutional. The court gave Parliament 2 years within which to enact legislation giving effect to its judgement. In February 2024, Parliament passed the Divorce Amendment Act (DAA). ² The DAA was assented to by the President in May 2024 and it commenced on 14 May 2024. ³ According to long title, the purposes of the Act are:

To amend the Divorce Act, 1979, so as to insert a definition for a Muslim marriage; to provide for the protection and to safeguard the interests of dependent and minor children of a Muslim marriage; to provide for the redistribution of assets on the dissolution of a Muslim marriage; to provide for the forfeiture of patrimonial benefits of a Muslim marriage; and to provide for matters connected therewith.

The Act amends section 1 of the Divorce Act to define a Muslim marriage as ‘a marriage entered into or concluded in accordance with the tenets of Islam.’ This definition is broad enough to cover a ‘multiplicity of meanings’ and is ‘aimed to accommodate the diverse interpretations of the Quran across different denominations and avoid religious entanglement by defining strict religious terms prone to multiple meanings.’ ⁴ It provides for the circumstances in which any marriage, include a Muslim marriage, may be dissolved under the Divorce Act (section 3); for the circumstances in which a court will safeguard the interests of children of a Muslim marriage in divorce proceedings (section 6); the distribution of assets at the dissolution of the marriage (section 7), and forfeiture of patrimonial benefits of marriage (section 9). However, it is silent on whether it replaces the husband’s right to terminate a marriage through a process or an act known as talaaq. ⁵ Likewise, it is silent on the woman’s right to terminate a marriage through a process or an act known as khul/khula ⁶ or faskh. ⁷ The drafting history of the DAA shows that although most of the legislators were of the view that it complied with the Constitutional Court’s judgement and would end the discrimination against those married according to Muslim law, one of the legislators argued that courts were required to interpret Muslim law to ensure that it does not entrench discrimination especially against women. ⁸ In H.A v N.A, ⁹ the High Court declined to resolve the issue of whether a woman against whom a talaaq has been issued can institute divorce proceedings under the Divorce Act. In other words, whether the DAA invalidated the dissolution of a Muslim marriage through talaaq. Relying on the drafting history of the DAA, the author argues that it does not ‘take away’ a husband’s right to terminate a marriage through talaaq. The author also argues that a proper interpretation of the DAA will enable the courts to strike a balance between Islamic law and the right to freedom from discrimination under section 9 of the Constitution. The author will start by highlighting the facts and decision in H.A v N.A (2025). Thereafter, the author deals with the issue emerging from the case in light of the drafting history of the DAA. This history is important in interpreting the Amendment Act.

The facts, issues and decision in H.A v N.A

In H.A v N.A, ¹⁰ the applicant (wife) and the respondent (husband) were married according to Islamic law (sharia). The wife instituted divorce proceedings against the husband. She also applied for maintenance as a form of ‘interim’ relief under Rule 43 of the Uniform Rules of the Court ‘pending the finalisation of divorce proceedings.’ ¹¹ However, the husband had issued the wife ‘with Talaaq before she filed the divorce proceedings.’ ¹² The court observed that the issue before it was whether it had ‘the jurisdiction to hear a Rule 43 application in circumstances where a marriage concluded in terms of Muslim Law was unilaterally terminated by the respondent [husband] when he issued the applicant with Talaaq before any divorce proceedings were instituted.’ ¹³ The husband argued that the wife was not a spouse within the meaning of Rule 43 because at the time she instituted the divorce proceedings under the Divorce Act, the marriage between the two had been terminated by the talaaq and that there was ‘no pending divorce.’ ¹⁴ The wife argued that Rule 43 was applicable because the husband had not filed a plea challenging the validity of the marriage and thus the validity of the marriage and its subsistence were still being disputed. ¹⁵ She also added that ‘recent amendments to the Divorce Act 70 of 1979…place this application squarely within the ambit of Rule 43.’ ¹⁶ In response, the husband reiterated that:

[T]he applicant does not fall within the ambit of the definition of the term ‘spouse’ as it is used in Rule 43. The…effect of the amendment of the Divorce Act is that a recognised marriage comes about when it is created in terms of Islamic law, and it terminates when it is ended in accordance with Islamic tenets…[I]t could not be argued that a marriage that comes about in terms of recognised Islamic rites can only be ended with an order of court in terms of secular law. Rather, the position is that an Islamic marriage ends when Talaaq is given. This process…is recognised by legislation. Because the Talaaq was issued before the divorce proceedings were instituted…the marriage was terminated on 18 May 2024, and the applicant cannot rely on the Divorce Act to dissolve a non-existent marriage. ¹⁷

The husband added that the wife did ‘not dispute the validity of the Talaaq’ and that ‘the consequence of the amendment of the Divorce Act and the recognition of Muslim marriages is merely that women can now approach the court for the termination of a marriage, while it could only be terminated by a husband in terms of Muslim law.’ ¹⁸ The Court first outlined the purpose of the DAA ¹⁹ and observed that the submissions by the parties required it to interpret section 6 of the DAA. This section provides that:

This Act applies to all subsisting Muslim marriages, including a Muslim marriage - (a) Which was terminated or dissolved in accordance with the tenets of Islam and where legal proceedings for the dissolution of the said Muslim marriage in terms of the Divorce Act, 1979 (Act. No. 70 of 1979) have been instituted but not yet finalised, and (b) which subsisted as at 15 December 2014.

The Court added that the question for it to answer was:

Should the section be interpreted to mean that where a Talaaq was issued prior to divorce proceedings being instituted, there is no marriage that stands to be dissolved in terms of the Divorce Act, or should the section be interpreted that irrespective of the issue of a Talaaq, there is still a marriage that stands to be dissolved in terms of the Divorce Act [?]. ²⁰

The Court observed that the parties’ submissions raised a ‘complex legal question’ and that answering that question ‘requires an extensive and in-depth interpretation of the Divorce Act and the Divorce Amendment Act 1 of 2024.’ ²¹ It added that detailed submissions on the issue were required and that on facts before it, it was unnecessary to resolve that issue since the husband had ‘not yet filed a plea wherein he disputes the existence of the alleged marriage.’ ²² It added that since it was dealing with an application in interlocutory proceedings (maintenance pendente lite), it was not necessary to interpret section 6 of the Divorce Act and ‘any remarks made …concerning the validity of the marriage would be obiter.’ ²³ However, it disagreed with the husband’s submission that the wife did ‘not meet the definition of the term “spouse” in Rule 43 and that it did ‘not have the necessary jurisdiction to hear the application.’ ²⁴ It agreed with previous case law to the effect that ‘Rule 43 was merely designed to provide a streamlined and inexpensive procedure for procuring the same interim relief in matrimonial actions as was previously available under the common law in regard to maintenance and costs.’ ²⁵ It added that its previous case showed that:

[T]he word ‘spouse’ in sub-rule (1) includes not only a person admitted to be a spouse but also one who alleges that he or she is a spouse even where the allegation is denied. The rule applies whether the validity of the marriage or its subsistence is disputed. ²⁶

The court concluded that ‘the applicant [wife] clearly regards herself as a spouse. There is a pending matrimonial action, and the court deciding on the matrimonial action will be the correct court to pronounce on the validity of the marriage or its subsistence at that point.’ ²⁷ The question that the court did not answer and which the author will answer in this article is whether the DAA can be invoked in cases where a marriage has been dissolved through Muslim law (Talaaq). In other words, does the DAA replace the Talaaq? The answer to this question lies in the drafting history of the DAA. It is to this discussion that we turn.

Analysing the decision in H.A v N.A in the light of the drafting history of the amendment act

As pointed out, the court asked the question of whether the DAA negated the husband’s right to terminate a marriage through talaaq. The drafting history of the DAA shows that one of the legislators was concerned that the aim of the Bill was to replace Islamic law (sharia). ²⁸ However, he was assured that this was not the intention of the Bill. For example, after the Bill was adopted by the National Assembly and referred to the National Council of Provinces for approval before it became law, the Department of Justice submitted, inter alia, that ‘the Bill does not…replace Islamic divorce – women who are in Muslim marriages and wish to be granted a religious divorce will still need to follow Islamic law.’ ²⁹ The submission that the Act was not to replace ‘Islamic divorce’ was not challenged by any of the legislators. Thus, the DAA does not prevent Muslims from invoking Islamic law to regulate their divorces. However, as mentioned above, during the debates on the Bill in Parliament, one of the legislators argued that courts were required to interpret Muslim law to ensure that it does not entrench discrimination especially against women. ³⁰ In the next part of the article, the author illustrates how the DAA is likely to be implemented to promote the right to equality.

The right to equality and divorce in muslim marriages

The fact that the DAA does not abolish Islamic law raises the issue of whether women or men who are divorced under Muslim law, for example by the Muslim Judicial Council, ³¹ and who are not satisfied with the ‘conditions’ of divorce will not challenge the validity of such divorces in an effort to protect their right to equality protected under section 9 of the Constitution especially on issues which are expressly addressed under the DAA: safeguarding the interests of children; distribution of assets at the dissolution of the marriage; and forfeiture of patrimonial benefits of marriage. This possibility cannot be ruled out. The facts in H.A v N.A (February 2025) show that this has started to happen. This implies that at least four scenarios are likely to emerge. The first scenario is where a Muslim marriage will be dissolved according to Muslim law, for example, by the Muslim Judicial Council, and none of the parties will challenge the validity of the divorce. In this case, courts will not be asked to invoke any provisions of the DAA. The second scenario is where a Muslim marriage will be dissolved according to Muslim law, for example, by the Muslim Judicial Council, and one of the parties does not challenge the validity of the divorce (talaaq, khul or faskh) but challenges the conditions attached to it (e.g., those relating to children; distribution of assets at the dissolution of the marriage; and forfeiture of patrimonial benefits of marriage). In this case, courts will uphold the validity of the divorce (that it complies with Muslim law) but resolve the outstanding issues based on the DAA or other applicable law. This will require them to ensure, amongst other things, that the right to equality is protected. In this case, those issues will not be governed by Muslim law. ³² The third scenario is where one of the parties will contest the validity of the divorce on the basis that it did not comply with Muslim law and argue that the marriage should be dissolved according to the DAA. In other words, he/she argues that there is no divorce at all in terms of Muslim law. This has happened in several cases. ³³ If the court finds that there is indeed no valid divorce in terms of Muslim law, it will dissolve the marriage on the basis of the DAA. Thus, it will not apply Muslim law. The fourth scenario is where the divorce is entirely based on the DAA. In this case, there is no attempt to dissolve the marriage on the basis of Muslim law. Practically, there is no difference between the third and the fourth scenarios because in both cases the marriage is resolved on the basis of the DAA. ³⁴ Irrespective of which approach is followed, if the DAA is invoked to deal with issues such as the distribution of property (under section 7), the principle of equitable distribution of property will be invoked. ³⁵ This could sometimes mean equal distribution of property. ³⁶ Thus, at the core of the case will be the right to equality. This reasoning is supported by the drafting history of the DAA. For example, in its submissions on the Divorce Amendment Bill, the Department of Justice informed Parliament that Clause 4 of the Bill ‘deals with asset redistribution upon dissolving a Muslim marriage…[I]t allows a court to order the transfer of assets from one party to the other, addressing potential inequalities.’ ³⁷ The Department added that Clause 4 was supported by the stakeholders who made submissions on the Bill because it was aimed at ‘promoting fairness and equitable distribution of assets.’ ³⁸ The principle of equality will also apply to the dependent or minor children of the marriage irrespective of whether they are biological children of the parties. It will also apply irrespective of the sex of the child. Thus, the DAA does not abolish the husband’s right to terminate a Muslim marriage through talaaq. Likewise, it does not abolish the wife’s right to also terminate a Muslim marriage. Interpreting the Act in a manner that would take away that right would be contrary to the Act and its drafting history. It would also be contrary to section 9 of the Constitution which prohibits unfair discrimination on amongst other grounds ‘religion, conscience, belief.’ It would also be contrary to section 15 of the Constitution which provides for the right to freedom of religion and belief. This is so because compelling every Muslim to dissolve their marriage exclusively on the grounds under the DAA would render some of the grounds of divorce under Muslim law irrelevant. For example, apostacy is one of the grounds on which a Muslim marriage can be dissolved. ³⁹ However, it is not one of the grounds under section 3 of the Divorce Act. Another issue that arises from the case relates to the types of Muslim marriages that are governed by the DAA. It is to this issue that we turn.

Muslim marriages governed by the act

Section 6 of the DAA provides for the retrospective application of the Act. The use of the word ‘including’ in section 6 implies that the list of the types of marriages to which it is applicable is not exhaustive. In other words, it is not limited to those mentioned in the provision. However, such a marriage must be celebrated according to the ‘tenets of Islam.’ The challenge is that the Act does not define or describe the ‘tenets of Islam.’ However, the drafting history of the Act shows that initially, the Private Member’s Bill had included a broad definition of a Muslim marriage to mean:

a marriage concluded in accordance with Islamic Law that is, Shariah, which regulates all public and private behaviour as derived from traditional customs (Al-Urf), the two primary sources, namely, the Quran and the Sunnah (Prophetic model) and that uses juristic tools such as ijma (the consensus) of Muslim Jurists and the individual jurist’s qiyas (analogical deductions) to issue legal edicts. ⁴⁰

However, the Department of Justice replaced the above definition with the one in the Act to the effect that a Muslim marriage means ‘a marriage entered into or concluded in accordance with the tenets of Islam.’ In its submissions to Parliament, the Department of Justice argued that some of the stakeholders had expressed ‘concerns about the vagueness of the phrase “tenets of Islam” …[as the] wording [was] too broad, given the seven major sects of Islam with differing interpretations of the Quran and Sharia law.’ ⁴¹ However, the Department justified the use of that phrase because it was a ‘broad definition.’ This was necessary because:

They aimed to accommodate the diverse interpretations of the Quran across different denominations and avoid religious entanglement by defining strict religious terms prone to multiple meanings. Instead of referencing Sharia law or a more detailed definition requiring further explanation…the Department opted for the phrase ‘tenets of Islam’ because it is broad and covers a multiplicity of meanings…[T]he Department's rationale for the broad definition of “Muslim marriage”…aimed to encompass the diverse interpretations of Islam across denominations and avoid religious entanglement by using the phrase “tenets of Islam,” which broadly covers various meanings…[T]he dictionary definition of “tenets” aligns with their intention. It refers to a principle or belief, making it suitable for capturing the core tenets of any Islamic sect or denomination. ⁴²

Although the phrase ‘tenets of Islam’ means different things in different situations, ⁴³ in the context of the DAA it is intended to mean ‘marriages that have been solemnised under the tenets of Islamic faith.’ ⁴⁴ In other words, ‘marriages...solemnised in ceremonies conducted under the tenets of Islamic law.’ ⁴⁵ That is, marriages that have been celebrated in accordance with Islamic law. Thus, whether a marriage will be recognised as a Muslim marriage will depend on the ‘belief’ of those who celebrated it. In other words, the definition is broad enough to cover any type of Muslim marriage irrespective of the views that some Muslim sect(s) may have about the validity or otherwise of such a marriage. This is the case even if such a sect is the majority or minority. This broad approach will ensure that all Muslim sects are treated equally under the Act. For example, according to the United States Department of State, ‘Muslims constitute 1.7% of the population, of whom a great majority are Sunni. Shia religious leaders estimate not more than 3% of the Muslim population is Shia.’ ⁴⁶ This means, for example, that whether one is Sunni or Shia, their marriage will be recognised. Otherwise, the treatment would amount to unfair discrimination under section 9 which prohibits, inter alia, discrimination on the grounds of religion and belief.

Conclusion

In this article, the author has illustrated the drafting history of the DAA. It has been demonstrated that the DAA does not replace Muslim law. Thus, those who choose to have their divorces governed by Muslim law will still be able to do so. It has also been illustrated that the co-existence of Muslim law and the Divorce Act means, inter alia, that some of the Muslim marriages will be dissolved according to Muslim law and others according to the Divorce Act. Irrespective of which approach is followed, the issue of equality between the parties will have to be dealt with. This will be the case, for example, when the question relating to the interests of children and the distribution of property are dealt with.