religious marriage

The applicant was a woman married according to Muslim rites and whose husband had died intestate. The marriage was not solemnized by a marriage officer under the Marriage Act 25 of 1961. The house in which the applicant and her husband had lived was transferred to the deceased’s estate. The applicant was told that she could not inherit from the estate of the deceased because she had been married according to Muslim rites, and therefore was not a “surviving spouse.” A claim for maintenance against the estate was rejected on the same basis.

The petitioner sought a divorce from her husband under common law rather than Islamic rite. After several years of marriage, (i) the petitioner discovered that the respondent had lied about being divorced prior to their marriage, (ii) the respondent stopped supporting her financially, and (iii) the respondent neglected their relationship.

The plaintiff petitioned to bring three consolidated actions directly to the Constitutional Court.  They sought a declaratory order that the President recognize Muslim marriages as valid for all purposes in South Africa.  The Constitutional Court dismissed the plaintiffs’ plea for direct access and instead directed them to the High Court.  The High Court held that the State’s failure to enact legislation recognising religious Muslim marriages violated the rights of Muslim women based on religion, marital status, gender, and sex.  The court directed the President, Cabinet