An analysis s 5A of the Divorce Act 70 of 1979 and its application to marriages concluded in terms of Islamic law

• Jurisdiction: South Africa
• Date: 01 June 2023
• Pages: 1-12
• Author: Muneer Abduroaf
• Published date: 01 June 2023
• DOI: 10.17159/2225-7160/2022/v56a1

S 5A of the Divorce Act 70 of 1979 and marriages concluded in terms of Islamic law 1

An analysis s 5A of the Divorce Act 70 of

1979 and its application to marriages

concluded in terms of Islamic law

Muneer Abduroaf

LLB (Shariah) LLB LLM LLD

Senior Lecturer, Private Law Department, University of the Western Cape

SUMMARY

There has (to date) been no legislation enacted by the South African

government that fully recognises marriages concluded in terms of Islamic

law (Islamic marriages) as well as the Islamic law consequences that flow

from these marriages. Some South African Muslims have opted to

conclude marriages in terms of South African law (civil marriages) in

addition to their Islamic marriages. This could be referred to as dual

marriages. The civil marriages as well as its consequences (not the Islamic

law consequences) would then be fully protected in terms of South African

law. It is quite interesting to note that s 5A of the Divorce 70 of 1979

authorises a court to refuse the granting of a civil divorce if either of the

parties would not be free to remarry subsequent to the granting of the civil

divorce. This article analyses how s 5A of the Divorce Act 70 of 1979

applies to dual marriages. It looks at the impact of s 5 A of the Divorce Act

on dissolution of dual marriages concluded by Muslims within the South

African legal context. The dissolution of Islamic marriages within the

South African legal context is looked at by way of introduction. The

dissolution of a civil marriage within the context of a dual marriage (couple

married in terms of Islamic law and civil law) is then looked at. The article

concludes with an overall analysis of the findings and makes

recommenda tions.

1Introduction

There has (to date) been no legislation enacted by the South African

government that fully recognises marriages concluded in terms of

Islamic law (Islamic marriages) as well as the Islamic law consequences

that flow from these marriages.1 It should be noted that some

recognition have been given to Islamic marriages, based on a piecemeal

approach, where existing South African law provisions (not Islamic law

provisions) were challenged on constitutional grounds for not

recognising these Islamic marriages.2 An example in point would be

where the Intestate Succession Act 81 of 1987 was challenged on

1 It should be noted that Muslims have been living in South Africa for over

300 years.

2 Abduroaf ‘An Analysis of the Islamic Law Based Developm ents in th e South

African Law of Succession’ (2020) Manchester Journal of Transnational

Islamic Law and Practice 143.

How to cite: Abduroaf ‘An analysis s 5A of the Divorce Act 70 of 1979 and its application to marriages

concluded in terms of Islamic law’ 2023 De Jure Law Journal 1-27

http://dx.doi.org/10.17159/2225-7160/2022/v56a1