At the Intersection of State Law and Non-State Law: Implications of the New Divorce Amendment Act on the Fundamental Rights of Muslims in South Africa

Until 28 June 2022, all religious marriages in South Africa were not legally recognised. On 28 June 2022, the South African Constitutional Court found that the non-recognition of Muslim marriages is unconstitutional because it violates the rights to equality, access to justice, and children's rights among others. The Court held that the common law definition of marriage was unconstitutional to the extent that it does not include Muslim marriages. The Court further ordered the South African state to amend existing legislation or enact new legislation to recognise and regulate the consequences of Muslim marriages. Until that happened, the Court ordered the implementation of an interim measure to enable Muslim spouses who were or are undergoing Muslim divorce to institute a civil divorce in terms of the Divorce Act 70 of 1979. Early in 2024, the Al Jama'ah party, a party that purports to represent a Muslim constituency in South Africa, successfully had amendments to the Divorce Act enacted through the Divorce Amendment Act 1 of 2024. The latter purports to implement the interim measures anticipated by the Constitutional Court. In this paper, I consider the point at which Muslim family law meets civil family law through the Divorce Amendment Act. I examine the implications of the amendments for Muslim parties and children born of Muslim marriages. I especially explore the extent to which the intersection between state and non-state law allows Muslim marriages and divorces to be incorporated into a secular legal framework, and the implications of such incorporation for the rights to freedom of religion, gender equality and children's rights.