ATC231101: Report of the Portfolio Committee on Justice and Correctional Services on the Divorce Amendment Bill [B 32-2022], dated 1 November 2023
Justice and Correctional Services
Report of the Portfolio Committee on Justice and Correctional Services on the Divorce Amendment Bill [B 32-2022], dated 1 November 2023
The Portfolio Committee on Justice and Correctional Services, having considered the Divorce Amendment Bill [B32 – 2022], is of the opinion that it is not desirable to proceed with the Bill:
1. The Bill aims to amend the Divorce Act, 1979 (Act No. 70 of 1979) to remedy the constitutional defects identified by the Constitutional Court in Women’s Legal Centre Trust vs President of the Republic of South Africa and Others [2022] ZACC 23.
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 Minister of Justice and Correctional Services introduced the Divorce Amendment Bill [B22 – 2023] on 20 July 2023 and the Bill was referred to the Committee for consideration and report.
5. The Divorce Amendment Bill [B22 – 2023] 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 to be considered