Issued by Ismail Joosub on behalf of the FW de Klerk Foundation on 18/11/2024

In October 2024, South Africa reached a new milestone as the Department of Home Affairs began issuing marriage certificates that officially recognise Muslim marriages, commonly known as “Nikah marriages”. This development, which followed years of advocacy and legal battles, marks a significant moment not only for South Africa’s Muslim community, but for the broader diversity of our nation. It is a moment that underscores the power of our Constitution—a document that, in its brilliance, has made space for all South Africans to live out their diverse and rich traditions, including those in religious minority communities. For the first time in our history, Muslim couples will no longer be forced to choose between a civil or customary marriage in order to gain state recognition. They now have the right to register their Nikah marriages with the Department of Home Affairs, affirming their right to dignity, equality and religious freedom.

The road to this victory was long and fraught with legal challenges, notably the landmark President of the Republic of South Africa & Others v Women’s Legal Centre Trust & Others case. In 2020, the Supreme Court of Appeal declared the Marriage Act of 1961 and the Divorce Act of 1979 unconstitutional for failing to recognise Muslim marriages. The judgment underscored how these omissions violated constitutional rights, including equality (section 9), dignity (section 10), and children’s rights (section 28). The Constitutional Court later affirmed this ruling, upholding the declaration of invalidity and granting Parliament 24 months to address the legislative defects. During this interim period, Muslim marriages could be registered under the Recognition of Customary Marriages Act, 1998 as a temporary measure until legislative amendments were finalised.

Now, thanks to adjustments in Home Affairs’ systems, Muslim marriages are formally acknowledged on their own terms. Couples can even retroactively update their marriage certificates to reflect this recognition. Moreover, while the Muslim Marriages Bill is still under deliberation, President Cyril Ramaphosa recently signed into law the Divorce Amendment Bill, which amends the Divorce Act of 1979 to provide comprehensive protection for Muslim marriages, particularly in cases of dissolution. The new law safeguards the interests of Muslim women and children, ensuring the redistribution of assets and protection of patrimonial benefits during divorce, as well as recognising the unique status of Nikah marriages within South Africa’s legal framework.

For decades, South Africa’s Muslim community lived without the legal recognition of their marriages, despite the fact that these marriages were valid under Islamic law. The lack of legal recognition created a host of difficulties for Muslim women, children and families, from inheritance disputes to challenges in divorce proceedings. In the face of these challenges, the Muslim community, alongside human rights lawyers and civil society advocates, called for reform, for their marriages to be recognised as legitimate and binding under the law.

This is a testament to the power of  our Constitution, which enshrines the rights of all individuals to live their lives in accordance with their deeply held beliefs. Section 15 of the Constitution guarantees the right to freedom of religion and section 9 ensures the right to equality before the law. These are not abstract principles—they are the foundation upon which our legal system is built and they provide the framework for ensuring that all citizens are treated with the respect and dignity they deserve. In this case, the recognition of Muslim marriages is a clear example of the Constitution’s capacity to allow communities to live their values in a pluralistic society. It is a victory not just for Muslims, but for the very idea of South Africa as a nation where diversity is celebrated, not just tolerated.

It is easy to overlook the profound significance of this moment, especially for those who may not understand the particular challenges faced by South Africa’s Muslim community. However, when we pause to reflect on the history of our country, we realise that this achievement is not just a legal technicality—it is a triumph of the Constitution’s promise to create a just and equitable society. For centuries, Muslims in South Africa were denied this basic recognition, despite contributing enormously to the country’s development. From the early days of Islam in the Cape Colony to the present, Muslims have been integral to our national story, yet their religious practices and marriages were often relegated to the margins of South African life. This constitutional change brings with it the restoration of dignity to an entire community, acknowledging their rich cultural and religious heritage.

Under the new laws, Muslim women can assert their legal rights, ensuring fair asset division and protection for their children in case of divorce. Without this recognition, women and children could face inheritance disputes, unequal treatment, or be denied spousal support, leaving them vulnerable in critical legal matters.

For those of us who are invested in seeing the full realisation of our Constitution’s promise, this development is an important moment. It is a reminder that South Africa is not a country defined by a single culture or religion, but a nation that finds strength in its diversity. The ability to recognise and celebrate our differences, to make room for everyone to live their values without fear of discrimination, is what makes South Africa unique. The Constitution is the instrument that makes this possible, allowing for a social contract in which citizens respect and accommodate one another’s religious, cultural and personal choices. In this sense, the recognition of Muslim marriages is, at its core, a sociological milestone, affirming the right of people to express their identity and live according to their beliefs.

We must also recognise the symbolic power of this legal change. By making Muslim marriages official, the state is sending a message to all South Africans—whether Muslim, Christian, Hindu, or any other belief—that our laws are meant to reflect and respect the diversity of our society. It is proof that the Constitution works, that it can protect minority rights and, yet, still allow diverse communities to flourish. For South Africa, this is a moment to be proud of. It is a reminder of the power of our Constitution to enact change, to protect the rights of all citizens and to ensure that we continue to build a society where dignity and equality are not just ideals, but lived realities for all.