Getting Divorced In South Africa When Married Only Under Muslim Rites: Your Rights, Responsibilities, And Legal Protections

 

In South Africa, many couples are married under religious rites without registering their marriage under civil law. For Muslims, this often means a Nikkah (Islamic Marriage) that is not officially registered with the Department of Home Affairs. If you're in this position and facing divorce, it's important to understand how South African law treats your marriage and what protections you may (or may not) have. 

 

Is a Muslim Marriage Recognised in South African Law?

 

Historically, Muslim Marriages were not recognised as valid civil marriages under South African law. This meant that spouses in unregistered Muslim marriages had limited or no access to the protections provided by civil marriage laws, such as those under the Marriage Act, Divorce Act, or Matrimonial Property Act.

 

However, this changed in 2022, when the Constitutional Court ruled in Women's Legal Centre Trust v President of the Republic of South Africa that the failure to recognise Muslim marriages was unconstitutional. The court gave the legislator 24 months (until June 2024) to rectify this. 

 

As of 2025, the status of implementation still affects how your divorce is handled. While full legal recognition of Muslim marriages is pending legislation, the courts are now required to provide equitable relief in divorce matters involving Muslim marriages - even if they were not registered. 

 

 

What Happens If You Want To Get Divorced?

 

If you were married only under Muslim rites (Nikkah) and not under South African civil law, you must go through two proceedings:

 

1. Religious Divorce (Talaq or Fasakh): You or your spouse must initiate a religious divorce. In Islamic law, a husband may pronounce talaq, or a woman may apply to a Shariah Council for a faskh (dissolution). This process is religious and spiritual, not legal in the civil sense.

 

2. Civil Legal Process (Now Available via Court):

Thanks to recent legal developments, you can now approach a High Court or Magistrate's Court for a divorce order and ancilary relief (like maintenance, division of assets, and custody), even if your marriage was not registered. You'll need to show evidence of the marriage (a Nikkah certificate or witnesses) and the duration of the union.

 

Your Legal Rights

 

If you're divorcing under Muslim rites, here's what South African law now increasingly protects:

  • Spousal Maintenance: You may claim interim and post-divorce maintenance under certain circumstances.
  • Custody and Access: The best interests of the children are paramount. Either parent can apply for care or contact.
  • Division of Property: Even though your marriage may not have had a civil marital regime (like in community of property), courts may use unjustified enrichment or universal partnership principles to fairly divide assets.
  • Protection from Abuse: You are fully protected under the Domestic Violence Act, regardless of the type of marriage.

 

Responsibilities

 

With rights come responsibilities, including:

  • Financial Support of Children: Both parents are legally obligated to support their children financially, proportionate to their means.
  • Honesty and Disclosure: If you approach a civil court, full disclosure of assets is necessary. 
  • Respect for Religious and Civil Processes: While you can follow religious divorce proceedings, you should also follow the legal process to ensure your rights are fully protected.

 

Why You Should Still Register Your Marriage

 

Even with these changes, it's strongly advisable to register your Muslim marriage with the Department of Home Affairs if possible. This gives you automatic access to all protections under South African family law without needing to prove the existence of your marriage in court.

 

The Department is expected to finalise new legislation soon, which will officially recognise Muslim marriages. This will remove much of the current uncertainty.

 

Final Thoughts

 

Divorcing when your marriage is not registered under South African law can be complicated, but recent legal changes have brought more protection and clarity. You are not without recourse. Whether you're seeking maintenance, asset division, or parenting rights, the courts are now more willing to assist spouses in religious marriages. 

 

If you're in this situation, it is wise to consult both a family lawyer familiar with Muslim personal law and a Shariah authority to ensure your rights are protected on all fronts. 

 

Legal Disclaimer:

The content of this blog post is for informational purposes only and does not constitute legal advice. Reading this post does not create an attorney-client relationship. For advice on your specific situation, please contact us to speak to one of our qualified attorneys.