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The applicant submitted that on 8 June 1960 she had married her husband in accordance with Islamic law. Her father had acted as her marriage guardian (wali nikah) before two witnesses, and with a dowry (mahar) of three grams of gold. No legitimate reasons impugned their marriage. The applicant's husband had passed away on 6 November 2015, his death certificate being issued on 10 November 2015. He left behind only his pension, which the applicant could not access because she and her husband had never been issued with a marriage certificate. Accordingly, the applicant requested that the court ratify her marriage in accordance with current legislative provisions.

The court, noting its exclusive jurisdiction over the ratification of Islamic marriages as guaranteed by art 49(a) of Law No. 7 of 1989 on the Religious Judiciary, as well as the fact that the concrete facts submitted by the applicant accorded with art 7(2) and (3)(d) of the Compilation of Islamic Laws, acceded to the application.

The applicants submitted that they were married in accordance with Islamic shari'a on 10 August 1998 before two witnesses. The second applicant's father had acted as her marriage guardian (wali nikah) and the dowry (mas kawin) had been IDR 100,000. At the time of the parties' marriage, the first applicant was a widower (aged 31 years) and the second applicant a divorcee (aged 27 years). The parties were not blood relatives nor had they shared a wet-nurse. There were no other prohibitions to their marriage under Islam or current laws. The parties had four children and no third party had ever sought to impugn the sanctity of their marriage. They had never, however, received a marriage certificate issued by the Office of Religious Affairs. The parties, therefore, requested that the court ratify their marriage for civil administration purposes.

The sole judge requested that the parties withdraw their application on the grounds that they had failed to submit relevant evidence and produce witnesses.

By Waheeda Amien (University of Cape Town), originally published on The Conversation

South Africa’s Constitutional Court has fundamentally changed the country’s marriage law, making it fairer to people who are married “out of community of property” when their marriages end. In these marriages, the estates of spouses are kept separate. They do not combine what they own into a joint estate.

The change applies to people who got married after 1 November 1984 when their marriages end in divorce; or who got married before or after 1 November 1984 and whose marriages end in death.

The apex court’s judgment of 10 October 2023, in the case of EB v ER, will benefit spouses, mainly wives, who find themselves in financially vulnerable positions when their marriages out of community of property without accrual end in divorce or death. This includes stay-at-home mothers, who take care of the family home or raise the children full time. Their non-financial contributions to the marriage, including unpaid labour in the home, are now valued as much as any financial contributions to the marriage.

Before 1 November 1984, there were only two legally recognised matrimonial property regimes applicable to marriages in South Africa. They were marriages in community of property and out of community of property.

Marriages in community of property are those in which the estates of both spouses are combined. When the marriage ends through divorce or death, the parties each have a 50% claim against the joint estate.

In the case of the out of community of property regime, the estates of the spouses are at all times kept separate. Neither spouse has a claim against the other spouse’s estate even if they contribute to the maintenance or growth of the other’s estate.

The change

On 1 November 1984, the Matrimonial Property Act 88 of 1984 entered into force. It introduced a third matrimonial property regime: the accrual system.

The accrual system allows spouses who are married out of community of property to share in the growth of each other’s estates while still maintaining their separate estates.

Both spouses retain separate estates when they enter the marriage and during the marriage. At the end of the marriage through divorce or death, the spouse with the smaller accrual or no accrual has a claim against the spouse with the bigger accrual. The claim is for an amount equal to half of the difference between the accrual of the respective estates of the spouses.

For example, a wife and husband each enter the marriage with R1,000. At the time that they are married, both spouses are working. During the marriage, they decide that the wife should stay at home and take care of the house and children while the husband will continue working and be the breadwinner of the family.

Suppose that at the end of the marriage, the wife’s estate is valued as R3,000 and the husband’s estate is valued as R10,000. The accrual in the wife’s estate is R2,000. The accrual in the husband’s estate is R9,000. Half the difference between the accrual of the spouses’ estates is R3,500 (R9,000 minus R2,000 equals R7,000, divided by two equals R3,500.) Since the wife’s accrual is smaller than her husband’s accrual, she has a claim of R3,500 against her husband’s estate.

The above crude example illustrates that even though it may not have been intended, the out of community of property with accrual regime recognises that even though parties retain separate estates during the marriage, they may contribute indirectly to the maintenance or growth of each other’s estates, like the wife did through her unpaid labour in the home.

The judgment

When the accrual regime was created, section 7(3) of the 1979 Divorce Act was amended to allow spouses who were married out of community of property before 1 November 1984 (who therefore did not have the option of accrual), and who were undergoing a divorce, to apply to a divorce court for a redistribution order.

Through a redistribution order, a court can transfer the assets of one spouse to the other spouse if it is just and equitable to do so. This applies in instances where one spouse contributes directly or indirectly to the maintenance or growth of the other spouse’s estate including through the rendering of services.

In its judgment of 10 October 2023, the Constitutional Court found section 7(3) of the Divorce Act, among others, to be unconstitutional and invalid to the extent that it did not include a) spouses who were married out of community of property without accrual after 1 November 1984 if the marriages were dissolved through divorce, and b) spouses who were married out of community of property without accrual before or after 1 November 1984 whose marriages ended through death.

These parties could not claim a redistribution order if they contributed to the maintenance or growth of their spouse’s estate.

Significance of the judgment

The court’s judgment will provide much needed financial relief to spouses whose marriages out of community of property without accrual end regardless of when the parties were married or how the marriage ended.

The judgment will also benefit spouses in Muslim marriages. These were legally recognised when the Constitutional Court, in a 2022 case, Women’s Legal Centre Trust v President of the Republic of South Africa, declared that the common law definition of marriage and section 7(3) of the Divorce Act, among others, were unconstitutional to the extent that they did not include Muslim marriages. Now, spouses in Muslim marriages that are out of community of property without accrual, which dissolve through divorce or death, may apply to court for a redistribution order to transfer the assets from one spouse’s estate to the other.

Next steps

The advisory committee of the South African Law Reform Commission Project 100E on the Review of Aspects of Matrimonial Property Law is reviewing existing laws that deal with matrimonial property regimes.

In light of the Constitutional Court judgments in the Muslim marriages’ and accrual cases, the advisory committee could most likely recommend amendments to, among others, section 7(3) of the Divorce Act to enable all spouses married out of community of property without accrual to apply to court for a redistribution order when their marriages end in divorce or death.

In its discussion paper 160, the commission recommends that a court should retain discretion to ensure a just and equitable result when granting a redistribution order.

This government regulation makes several amendments to Government Regulation No. 10 of 1983 on Permission to Marry and Divorce for Civil Servants. The amendments do not effect any significant change but, as the regulation states, are designed to provide greater legal certainty and sense of justice.

This Supreme Court regulation states that the aim of such roaming and integrated services is to increase access and affordability for those marginalised and/or disadvantaged, to have their marriages and the birth of their children ratified and/or registered. The Regulation notes that court costs will be borne by the parties, while logistical and operational costs will be borne by the relevant province or regency/municipality. Impecunious parties can receive these services at no charge, provided they submit an application, furnished with a Certificate of Impecuniosity (Surat Keterangan Tidak Mampu) issued by the authorised agency in accordance with current provisions.

This Supreme Court regulation also replaces Supreme Court Circular No. 3 of 2014.

On June 28, 2022, the Constitutional Court of South Africa confirmed the Supreme Court of Appeal order that the state must amend existing legislation or enact new legislation to recognize and regulate the consequences of Muslim marriages. The order declared certain provisions of the Marriage Act and the Divorce Act unconstitutional due to the persistent non-recognition of Muslim marriages, or marriages solemnized in accordance with the tenets of sharīʿa, that have resulted in the infringement of fundamental rights of parties to Muslim marriages, and Muslim women and children in particular. The Constitutional Court confirmed this order stating that “the common law definition of marriage is declared to be inconsistent with the Constitution and invalid to the extent that it excludes Muslim marriages.”

In this case, the defendant, a Muslim male, had sexually abused and then married one of his stepdaughters. While the Court of Appeals of Virginia did not consider the defendant's claim that it was "normal" in "Muslim culture" for men to marry very young women, it determined that the trial court erred in not granting the reopening of the case in light of the new evidence that could result in the defendant losing custody over the other children.

This ordinance gives effect to certain recommendations of the Commission on Marriage and Family Laws.

This government regulation regulates the marriage and divorce process, requirements, and financial implications thereof, for Indonesian civil servants.

The wife argued that the couple had a marriage ceremony in Damascus, and, should that Islamic ceremony not be legally recognized, that a valid marriage should be presumed because of the couple’s long cohabitation and public reputation as husband and wife. The husband argued that the couple was not present in Damascus at the time of the alleged marriage, and that they instead had an Islamic marriage ceremony at a flat in London. Accordingly, while the ceremony was religiously recognized as a marriage, it was not valid under English law. In its judgment, the Court ruled that where, as here, the only known or proven ceremony was one which might not have constituted a marriage under English law, then a marriage could not be presumed.

This ministerial decree stipulates that the dispensation fee (iwadh) to repudiate a marriage (talak satu khul'i) is IDR 10,000.

This Supreme Court jurisprudence states that the assessment of evidence is not a relevant consideration at the cassation level in cases of marriage repudiation.

The parties were married on 7 July 2002 in accordance with Islamic shari'a. Having never complied with marriage administrative requirements, the parties did not hold a marriage certificate. The parties also had two children. They had been married happily for 12 years but, by the end of 2014, the parties' marriage had become disharmonious after the respondent carried on an extra-marital affair with another man. In March 2015, the parties separated. The applicant requested that the court ratify the parties' marriage and grant him a revocable divorce (talak satu raj'i). After the applicant failed to attend the proceeding, however, the court dismissed the application.

An excerpt from the book al-Muqni' fī 'ilm al-Shurūt, this section details the legality on issues of marriage, paternity, and children. 

In its judgment dated October 10, 2023, the Constitutional Court of South Africa (the "Court") interpreted section 7(3) of South Africa's Divorce Act. The relevant provision allowed redistribution orders from one spouse to another in marriages that took place "out of the community of property," where marital assets are kept separate between the spouses at all times. Instead, the section introduced an "accrual system" for out-of-community property marriages, allowing spouses, in the event of the marriage's dissolution, to claim from the other spouse some of the assets accruing during the marriage as equitable relief. While the section has been lauded for protecting financially vulnerable spouses, especially those whose domestic and reproductive labor went unnoticed, the Court still invalidated the section to the extent that it excluded two groups from its coverage: (1) spouses who married out of the community of property without accrual after November 1, 1984 (the section's cut-off date) and whose marriage ended through divorce; and (2) spouses who married out of the community of property without accrual before or after November 1, 1984, and whose marriages ended through death.

The Court's judgment has been interpreted as extending the accrual system protections to these two groups. One commentator, Waheeda Amien (University of Cape Town), noted in her contribution to The Conversation: "The Court's judgment will provide much-needed financial relief to spouses whose marriages out of the community of property without accrual end, regardless of when the parties were married or how the marriage ended."  The same piece also noted the impact of the judgment on Muslim marriages in South Africa: now, spouses in Muslim marriages that are out of community of property without accrual, too, will be able to ask courts to order the redistribution of marital assets in the event the marriage ends. 

This Supreme Court jurisprudence states that, since the enactment of Law No. 1 of 1974 on Marriage and Government Regulation No. 9 of 1975 on the Implementation of Law No. 1 of 1974 on Marriage, divorce as initiated by a husband (thalak) must be conducted before the local religious court/shari'a court.

This ministerial regulation permits Islamic marriages to be solemnised by a non-related marriage guardian (wali nikah) in the event no male family member (wali nasab) is available to marry the prospective bride and bridegroom.

The parties were married on 28 April 2005 at the second applicant's parents' home. The second applicant's father had acted as the marriage guardian (wali), the parties' oral declaration (ijab) had been witnessed by a celebrant (penghulu nikah), two other witnesses were present, and the dowry (mas kawin) had been a IDR 20,000. At the time of the marriage the first applicant was 25 years of age, and the second applicant was 19 years. There were no bars to their marriage under Islam, and the parties already had two children. The applicants required their marriage to be ratified so that they could obtain a marriage certificate from the local Office of Religious Affairs, as well as birth certificates for their children. As the applicants had failed to attend court, however, the sole judge ruled a miscarriage.

This indictment relates to a case involving a defendant with the initials AM who was accused of committing khalwat (being in a close proximity with a man unrelated to her by blood or marriage) and ikhtilath (physical intimacy between an unmarried man and woman). Her neighbors found her to be in close proximity in her home with a man, RS. AM insisted that RS was, in fact, her legitimate husband and that they were married by way of nikah dibawah tangan, a marriage officiated by a local imam and not registered in the civil registry. The prosecutor rejected the legitimacy of her marriage with RS by claiming that such unregistered marriage violated the Indonesian Marriage Law of 1974. Accordingly, AM’s act of being in close proximity with RS was considered unlawful.

Chapters on nominate contracts (endowment, sales, options, barter/ mu‘āwaḍa, hire and lease, partnerships -shirka, muzāra‘a, musāqāt, muḍāraba-, reward/ju‘āla, deposit, fungible and non-fungible loan, agency, financial and personal guaranty, assignment, settlement, pledge, gift), shuf‘a, wills, inheritance, marriage and divorce, mahr, and alimony took almost all of its substance from prominent Shi’i fiqh treatises. Other chapters (classification of properties, easement, usufruct, general rules of obligations and contracts, nationality, registration of civil status, domicile, engagement, guardianship, and evidence) are mainly influenced by Swiss and French Civil Codes and Swiss Code of Obligations.