Dissolving a muslim marriage in South Africa and the right to freedom from discrimination: The talaaq v. the Divorce Amendment Act (2024) ‘routes’ in the context of H.A v N.A (February 2025)

Abstract

In February 2024, Parliament passed the Divorce Amendment Act (DAA) to provide for the circumstances in which those who are married according to Muslim law can dissolve their marriages. This was pursuant to a Constitutional Court decision which found that some provisions of the Divorce Act unfairly discriminated against those married according to Muslim law. The DAA commenced on 14 May 2024. It defines a Muslim marriage and provides for, inter alia, the circumstances in which such a marriage may be dissolved and the distribution of assets at the dissolution of the marriage. However, it is silent on whether it replaces the husband’s right to terminate a marriage through talaaq and on the woman’s right to terminate a marriage. In H.A v N.A, the High Court declined to resolve the issue of whether a woman against whom a talaaq has been issued can institute divorce proceedings under the Act. Relying on its drafting history, the author argues that the DAA does not ‘take away’ a husband’s right to terminate a marriage through talaaq. Likewise, it does not take away the woman’s right to terminate a marriage hence guaranteeing the right to equality of the spouses in this regard. It is argued that taking away that right would amount to discrimination on the ground of religion. The DAA is equally applicable to all types of Muslim marriages irrespective of the Islamic denomination (sect).