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Muslim Marriages in the Spotlight – What Does the Law Currenlty Provide?

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Muslim Marriages in the Spotlight – What Does the Law Currenlty Provide?

28th September 2017

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A class action suit to have Muslim marriages declared legally valid in South Africa is currently being heard in the Western Cape High Court. The matter, which was filed in 2014, was deferred to be heard together with a matter which raises similar issues. This matter is being brought by the Women's Legal Centre (WLC).

South African law recognises different marital regimes but has so far only given piecemeal recognition to Muslim marriages.

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Prior to the advent of democracy, Muslim marriages, together with Hindu and other Traditional marriages, were not recognised as having the same legal status as civil marriages in terms of the Marriage Act No 25 of 1961 (hereinafter referred to as the “Marriage Act”). As a result, Muslim spouses and their children suffered discrimination, and children born from such marriages were viewed as illegitimate. Furthermore, Muslim women were denied spousal benefits such as having the right to inherit intestate, to claim maintenance and could not inherit a fair distribution of property at the dissolution of their marriage. The only recourse would lie in expensive High Court litigation, which was not always successful.

The Recognition of Customary Marriages Act
The Recognition of Customary Marriages Act (hereinafter referred to as the “Customary Marriages Act”), was enacted in 2000. Many Muslim individuals and couples incorrectly believed that this legislation would result in the recognition of (Nikah) Muslim marriages.
The Customary Marriages Act affords recognition to a customary marriage concluded in terms of customary law. The Customary Marriages Act defines customary law as, “the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples”. The definition clearly does not include or apply to marriages concluded by Muslim rights.

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The Muslim Marriages Bill
A Project Committee of the South African Law Reform Commission was established to investigate Islamic Marriages and matters relating thereto. This investigation ultimately led to drafting of the Muslim Marriages Bill. The Muslim Marriages Bill has not been enacted nor has it been allocated a commencement date. It therefore does not at present, amend the status of Muslim marriages in South Africa.

WLA Constitutional Court Application
At the beginning of 2009 The Women’s Legal Centre Trust made an application directly to the Constitutional Court, requesting the court to compel the President and Parliament to pass legislation recognising Muslim Marriages and regulating the consequences of such marriages within eighteen months. The Constitutional Court first addressed the question of jurisdiction, i.e. whether the court could be approached directly in this matter as a court of first instance. The Constitutional Court ultimately found that this application should follow the litigious hierarchy and be referred to the High Court as court of first instance.

Polygamous Muslim Marriages and Intestate Succession
In the case of Daniels v Campbell N.O and Others, the wife was not recognised as the surviving spouse of her husband when he passed away without leaving a will. She was informed by the Master of the High Court that because they were married in terms of Muslim law, she had no right to benefit from her husband’s estate. She approached the courts and was successful. The court ordered that “both the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of 1990 should be amended to make provision for the term ‘spouse’ as to include ‘a husband or wife’ married in accordance with Muslim rites in a de facto monogamous marriage”.

Moreover, in order to enjoy the legal rights and protection similar to civil marriages, Muslim couples (similar to other religious / cultural marriages) had to conduct a separate civil ceremony in order for their marriage to be recognised and protected as a valid marriage in the eyes of the law.

Registration of (Imaam’s / Ulama) Muslim Clerics as Marriage Officers
In 2014, the South African Department of Home Affairs launched a project to train (IMAAM / ULAMA) Muslim clerics to be designated marriage officers. Over 100 (IMAAM’S /ULAMA) Muslim clerics, from around the country, graduated as marriage officers at the end of April 2014. Their accreditation in terms of the Marriage Act now enables Muslim marriages to be legally recognised, enabling Imams to officiate over marriage unions.  Thus, a Muslim marriage will only be valid where the marriage is solemnised by a marriage officer duly registered as such in terms of the Marriage Act.
The designation of certain (IMAAM / ULAMA) Muslim clerics as marriage officers, does not afford recognition to Muslim marriage, but merely facilitates ease of registration, via the Muslim cleric, designated as a marriage officer. The proprietary consequences of such registered marriages will also be in terms of South African law and not (Sharia) Islamic law.

The role of the (IMAAM/ ALIM) Muslim cleric, as marriage officer, would then be to solemnise the marriage in terms of the Marriage Act of 1961 after the Islamic marriage ceremony. The marriage officer must thereafter register the marriage formally with the Department of Home Affairs. This registration is not a substitute for the (Nikah) Islamic marriage ceremony, nor does it have any bearing on its validity. However, by registering a marriage in terms of the Marriage Act, spouses can obtain recognition and regulate the proprietary consequences of their marriage. It should be noted that such a marriage officer may not marry any person who is already a party in another (Muslim) marriage, even where that marriage is not registered.

Couples should therefore, before concluding the marriage, consult with an attorney regarding the legal consequences of the intended marriage along with considering entering into an antenuptial contract tailored to their specific circumstances and needs.

Conclusion
There is a need for legislative framework to deal with Muslim marriages. This piecemeal recognition still leaves many women and children vulnerable and the current state does not offer adequate protection or clarity. The decision to be made in the Western Cape High Court is thus of paramount importance as it will hopefully lead to a resolution of the matter.

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