ATC231031: Report of the Portfolio Committee on Justice and Correctional Services on the Divorce Amendment Bill [B22 - 2023], Dated 31 October 2023

Justice and Correctional Services

Report of the Portfolio Committee on Justice and Correctional Services on the Divorce Amendment Bill [B22 - 2023], Dated 31 October 2023

 

The Portfolio Committee on Justice and Correctional Services, having considered the Divorce Amendment Bill [B 22 – 2023] (National Assembly – section 75), referred to it and classified by the Joint Tagging Mechanism (JTM) as a section 75 Bill, reports the Bill without amendment.

 

The Committee reports further:

 

1. In Women’s Legal Centre Trust v President of the Republic of South Africa and Others [2022] ZACC 23 (‘‘WLCT’’), the Constitutional Court recognised the need for and importance of protecting Muslim women and children of Muslim marriages, particularly in the instance of the dissolution of a Muslim marriage. The non-recognition of Muslim marriages in civil law has the effect that a person, who is married in terms of Islamic law only, has no right to approach a court of law for a decree of divorce.
    
2. The Constitutional Court held that the Divorce Act, 1979, is inconsistent with sections 9, 10, 28 and 34 of the Constitution, 1996. In particular, it held that sections 6, 7(3) and 9(1) of the Divorce Act are unconstitutional as these fail to safeguard the interests of minor or dependent children of Muslim marriages in the same manner as children of other marriages on the dissolution of the marriage; fail to provide for the redistribution of assets on the dissolution of a Muslim marriage; and fail to make provision for the forfeiture of patrimonial benefits on the dissolution of a Muslim marriage in the same terms as other dissolved marriages, respectively.
    
3. The Court gave the Executive and Parliament 24 months to remedy the constitutional defects, that is by 28 June 2024, and specified measures that will apply pending the amendment of the Divorce Act or the introduction of new legislation. However, these measures lapse at the end of the 24-month period.
4. The Committee is aware that the Department of Home Affairs is busy with drafting a single Marriage Bill, which will also deal with divorce. However, the legislation will not be finalised in time to meet the Constitutional Court deadline, namely 28 June 2024. In the meantime, this Bill is intended to address the identified constitutional defects to ensure that women in a Muslim marriage and children and dependents of Muslim marriages are protected.
    
5. The Bill’s purpose is, therefore, to amend the Divorce Act, to insert a definition of a Muslim marriage; to provide for the protection and to safeguard the interests of dependent and minor children of a Muslim marriage; to provide for the redistribution of assets on the dissolution of a Muslim marriage; to provide for the forfeiture of patrimonial benefits of a Muslim marriage and to provide for matters connected therewith.
    
6. Notably, the Bill allows persons who are in Muslim marriages, to get divorced in terms of the civil law. It does not constitute or replace an Islamic divorce. Persons, who are in Muslim marriages and wish to be granted a religious divorce, will still need to follow Islamic law.
    
7. The Bill was introduced on 20 July 2023 and referred to the Committee for consideration and report. The Committee was briefed on the Bill’s contents on 29 August 2023. The Bill was advertised for comment on 11 August 2023, and public hearings were held on 13 October 2023.
    
8. The Committee has also considered the Divorce Amendment Bill [B 32 – 2022], which is a Private Members Bill introduced by the Hon. MGE Hendricks on 2 December 2022 and referred to the Committee. The Private Members Bill is also intended to address the constitutional defects identified by the Constitutional Court in the WLCT judgement, and its provisions are similar to those found in this Bill. The Committee decided to proceed with the Bill introduced by the Executive and considered the contents of the Private Members Bill before it as far as possible.

 

 

Report for consideration