How retirement funds are impacted by the Constitutional Court judgment declaring the non-recognition of Muslim marriages unconstitutional
[Women’s Legal Centre Trust v President of the Republic of South Africa and Others  ZACC 23]
by Mpho Kgomongoe, Legal and Technical Specialist
In 28 June 2022, the Constitutional Court confirmed the order granted by the Supreme Court of Appeal (SCA) that declared certain sections of the Marriage Act 25 of 1961 (Marriage Act) and the Divorce Act 70 of 1979 (Divorce Act) unconstitutional, in that they fail to recognise Muslim marriages entered into in accordance with Sharia law and that have not been registered as civil marriages, as valid marriages.
The common law definition of marriage is the union of two spouses to the exclusion of other spouses. Sharia law allows and recognises polygamous marriages. However, these polygamous marriages are not recognised in terms of the Recognition of Customary Marriages Act, as they are not conducted and concluded in terms of African customs. This, in essence, excludes polygamous Muslim marriages from legislative protection. Further, Muslim marriages are not concluded in terms of the Marriage Act unless registered as a civil marriage, which results in the exclusion of Muslim spouses from the protection afforded by the Marriage and Divorce Acts. This exclusion is what led to the matters initially being brought before the High Court for the declaration of certain sections of the Marriage and Divorce Acts to be inconsistent with certain sections of the Constitution. The High Court found that women married in terms of Sharia law have been unfairly discriminated against. The decision of the High Court was brought on appeal before the SCA and was eventually referred to the Constitutional Court to confirm the order of the SCA that declared certain sections of the Marriage and Divorce Acts unconstitutional.
Often, women married in terms of Sharia law are not sufficiently empowered to exert their rights and negotiate the terms of their marriage at its inception. Sharia law allows Muslim husbands to unilaterally obtain a divorce through a Talãq (termination of marriage), which often leaves women in these marriages without adequate safeguards to obtain the kind of relief granted upon divorce in a civil court. Children born of Muslim marriages also do not enjoy the same legal protection and privileges as children born in civil and customary marriages – for instance:
- The family advocate report, which must be compiled to ensure the best interests of the child are taken into account upon divorce, is not obtained when a Talãq is issued, thus not considering the interests of the child;
- The Marriage Act stipulates a minimum age for marriage, which does not apply to Muslim marriages; and
- The courts assume an automatic oversight role in civil and customary marriages and are obliged to take the best interests of the child into account. In contrast, children born of Muslim marriages are not afforded the same automatic court supervision.
The Constitutional Court agreed with the High Court that this is a systemic violation of some constitutional rights, which inter alia include the right to equality and human dignity, and children’s rights.
Muslim women are deprived of the proprietary remedies offered by the Divorce Act and are often left destitute or with small estates upon the Talãq. Muslim marriages fail to provide for redistribution of assets on the dissolution of the marriage when redistribution would be fair. Neither do they provide for the forfeiture of the patrimonial benefits of the marriage at the time of its dissolution, unlike other marriages that are dissolved.
The Constitutional Court declared the Marriage and Divorce Acts inconsistent with the Constitution for failing to recognise marriages entered into in terms of Sharia law. The common law definition of marriage was also declared to be inconsistent with the Constitution and invalid to the extent that it excludes Muslim marriages.
Interim relief was granted to allow for the legislative defects to be remedied within 24 months. Muslim marriages entered into, or which have been terminated as of December 2014, where proceedings have been instituted but not finalised, may in the meantime be dissolved in accordance with the Divorce Act. All the provisions of the Divorce Act will apply, and these marriages will be treated as marriages out of community of property, irrespective of when the marriage was entered into, except where there is an agreement to the contrary.
The Pension Funds Act 24 of 1956 (Pension Funds Act) provides that a portion of pension interest assigned to the non-member spouse in terms of a decree of divorce or a decree of a dissolution of a customary marriage is deemed to accrue to the member when the divorce decree is granted. This means that a dissolution of a marriage by virtue of a Talãq is currently not recognised as a dissolution of marriage for purposes of the Pension Funds Act, thus preventing women married in terms of Muslim marriages from claiming a portion of pension interest when they get divorced. As a result of the Constitutional Court order, those marriages may now be dissolved in terms of the Divorce Act, and as such will be recognised as a dissolution of a marriage for purposes of the Pension Funds Act.
In order for a retirement fund to pay a portion of a member’s benefit to the member’s former spouse in a Muslim marriage, the divorce order must provide for a portion of the member’s pension interest to be assigned to the non-member spouse. In such divorce order, the fund must be named or identifiable, it must be ordered to make payment to the non-member spouse and to endorse its records, and the member must be an active contributing member of the fund (in other words, in an occupational fund, the member must still be employed by the participating employer). If the divorce order does not comply with these requirements, it will be unenforceable against the retirement fund.
In the case of a husband who is a spouse in more than one Muslim marriage, the court will have to consider all relevant factors, contracts or agreements and make an order that it deems just and equitable.