The Constitutional Court found the Divorce Act to be unconstitutional and ordered Parliament to fix the constitutional defects within 24 months.
The Department of Justice and Constitutional Development on Thursday said that it was cognisant of issues raised by civil society organisations for the need of reforms to the marriage laws.
This after Cosatu and Nehawu made calls for the overhaul of marriage laws when they made written submissions on the Divorce Amendment Bill that is now before the National Council of Provinces.
In June 2022, the Constitutional Court found the Divorce Act to be unconstitutional and ordered Parliament to fix the constitutional defects within 24 months.
The apex court held, in a matter brought by the Women’s Legal Centre Trust, that the Divorce Act was unconstitutional to the extent that it failed to recognise Muslim marriages which have not been registered as civil marriages as valid marriages.
On Thursday, the security and justice select committee was briefed on the written submissions from members of the public.
The bill seeks to amend the Divorce Act to insert a definition for a Muslim marriage, safeguard the interests of dependent and minor children of a Muslim marriage, provide for the redistribution of assets on the dissolution of a Muslim marriage and provide for the forfeiture of patrimonial benefits of a Muslim marriage.
The bill defines a Muslim marriage as marriage entered into or concluded in accordance with the tenets of Islam.
Committee chairperson Shahidabibi Shaikh said written submissions were received from Senzokuhle Advice Centre, Nehawu, Cosatu and Women’s Legal Centre Trust.
The Women Legal Centre Trust welcomed several clauses in the bill and also found the Muslim marriage definition to be simple.
“We submit that this language will simplify the implementation of the legislation and make it easier for women to identify themselves in the legislation,” the centre said in its submission.
State law advisor for the Department of Justice, Ina Botha said they avoided religious entanglement and defined strictly religious terms.
She indicated that the department did not seek to define prescriptively as the Home Affairs Department was best to find a best term in legislation.
“The Department of Home Affairs is working through a marriage bill to cater for a comprehensive definition of that term,” Botha said.
Both Nehawu and the Women’ Legal Centre Trust welcomed the amendment that a marriage, including a Muslim marriage, may be dissolved by a court by a decree of divorce.
The Women’s Legal Centre Trust supported the inclusion and extension of section 3 of Divorce Act to include provision for the dissolution of Muslim marriages in the same manner as other marriages in South Africa.
Cosatu said the bill was long overdue and sought to enhance the protection of women and children of Muslim marriages during divorce, separation of assets and custody proceedings.
The labour federation urged Parliament to ensure the speedy passage of the progressive bill.
“Cosatu support calls for a comprehensive overhaul of our marital laws catering for all faiths and traditions to ensure that all married parties and their children enjoy their full constitutional and legal rights and none are left disadvantaged,” it said.
Nehawu said the bill was only one of important steps towards a greater need for reform in marriage laws.
In its response, the department said it “notes the comment and it was cognisant of, and alive to the issues raised.”
Botha said the Department of Home Affairs was drafting a marriage bill, which was an overhaul of the current marriage laws.
“It recognises the standard requirements for all marriages, thereby recognising all faiths and traditions,” she said.
Deputy Minister John Jeffery said the bill aimed to address the Constitutional Court judgement.
“The overall review of the marriage-divorce system takes place with the bill of the Department of Home Affairs,” Jeffery said.
Cape Times