Notice of Introduction: Divorce Amendment Bill, 2022 [PMB]

In accordance with section 73(2) of the Constitution of the Republic of South Africa, 1996, notice is given that Mr M.G.E Hendricks, MP, intends to introduce the Divorce Amendment Bill, 2022, (“the Bill”) in Parliament. An explanatory summary of the Bill is hereby published in accordance with Rule 276(1)(c) of the Rules of the National Assembly (9th Edition).

The Divorce Act, 1979 (Act No. 70 of 1979) (“Divorce Act”), amongst other things, regulates the division of assets and the provision of maintenance of parties dissolving their marriage, with the aim of ensuring justice and fairness between them. The important remedies, contained in the Divorce Act, ensure the protection of interests of parties dissolving their marriage and the welfare of dependent children through access to maintenance, during and after divorce. The Divorce Act further provides for the protection of any assets parties may have brought into a marriage in community of property, but which they would otherwise lose. This protection allows the forfeiture by the other party of the patrimonial benefits of marriage. To date, parties in Muslim marriages are being left destitute, with their children, because they are cut off from the civil remedies available in the Divorce Act upon dissolution of their marriage. The vulnerabilities that this creates for parties in a Muslim marriage and children include risks of violence and abuse, sexual and economic exploitation and increased adverse mental health impacts and harms their human dignity.

In recognition of the above mentioned persisting injustices, the Constitutional Court, in Women’s Legal Centre Trust v President of the Republic of South Africa and Others1 declared the Marriage Act, 1961 (Act No. 25 of 1961), and the Divorce Act to be inconsistent with sections 9, 10, 28 and 34 of the Constitution in that they fail to recognise marriages solemnised in accordance with Sharia law (Muslim marriages), which have not been registered as civil marriages, as valid marriages for all purposes in South Africa, and to regulate the consequences of such recognition. The exclusion of Muslim Marriages in this Act, was declared unconstitutional.

Section 6 of the Divorce Act was declared unconstitutional in that the section fails to provide for mechanisms to safeguard the welfare of dependent children born of Muslim marriages, at the time of dissolution of the Muslim marriage in the same or similar manner as it provides for mechanisms to safeguard the welfare of dependent children born of other marriages that are dissolved. Section 7(3) of the Divorce Act was declared unconstitutional in that the section fails to provide for the redistribution of assets, on the dissolution of a Muslim marriage, when such redistribution would be just. Section 9(1) of the Divorce Act was also declared unconstitutional in that the section fails to provide for the forfeiture of the patrimonial benefits of a Muslim marriage at the time of its dissolution in the same or similar terms as it does in respect of other marriages that are dissolved.

The legislative process to address the issues raised have been ongoing for decades, the draft Bill provides an effective, expedient and timely remedy to amend the Divorce Act and to bring it in line with our Constitution, by ensuring that parties in a Muslim marriage and the children born from such marriage are no longer left out, and that the injustices that arise from their exclusion are eradicated.

While the proposed amendment presents an important measure to ensure the immediate and much needed protection of parties in Muslim marriage and the children born from such marriages, the Constitutional Court has set a deadline for November 2024 for the final amendments to the entire legislative scheme.

Find here: Notice of Introduction the Divorce Amendment Bill, 2022 [PMB]

Comments can be emailed to the Speaker of the National Assembly at [email protected] and Mr Ganief Hendricks at [email protected] by no later than Saturday, 17 December 2022.

Enquiries can be directed to Ganief Hendricks on cell on 081 387 9247 or at [email protected]