Recognition of Muslim Marriages in South Africa

In a recent Western Cape High Court (WCC) decision in Woman’s Legal Centre Trust v The President of the Republic of South Africa and Others, Faro v Bignham N.O and Others, Esau v Esau and Others(22481/2014, 4466/2013, 13877/2015) [2018] ZAWCH 109 (31 August 2018) the High Court had to consider whether the State had failed in its duty to “respect, protect, promote and fulfil the rights in the Bill of Rights” as is prescribed in Section 7(2) of the Constitution of the Republic of South Africa, Act 108 of 1996 (“the Constitution”) by not enacting legislation to recognise and regulate Muslim marriages.

Muslim marriages are currently not recognised as a valid marriage worthy of legal protection at the dissolution of the marriage whether by death or divorce. The reason for this is because they are solemnised in terms of Islamic tenets, by an Imam who is usually not a licenced marriage officer. A Muslim marriage is not registered at Home Affairs and therefore it is not recognised as a civil and /or customary marriage on our country. 

The Court looked at the evolution of case law regarding Muslim marriage from the Apartheid dispensation into the Democratic era specifically looking at the freedoms and rights entrenched in the Bill of Rights. These included the right to equality; human dignity; freedom of religion; best interest of the child; and access to courts.

Over the past couple of years our courts have recognised that husbands in polygamous Muslim marriages have a legal duty to maintain their wives. Spouses in polygamous and monogamous Muslim marriages are afforded the same protection as spouses in civil or cultural marriages, where one spouse has passed away without a last will and testament. This was however where the matter ended. Although there has been attempts by the state to draft appropriate legislation, it has been met with strong opposition.

The court was approached in this matter due to the fact that women and children from Muslim marriages have no protection under existing South African law, when the marriage ends, as far as maintenance; care and contact; and division of estates are concerned. At present a husband in a Muslim marriage has the power to dissolve the marriage without the wife’s consent and although the religious bodies may make orders relating to the division of the estate and maintenance, it is unenforceable in our courts.  

In civil and customary marriages the Divorce Act 70 of 1979 (“the Divorce Act”) states that the Court will not grant a divorce if the welfare of the children is not suitably provided for. No such protection is provided for children born from a Muslim marriage. Further there is a minimum age for marriage in the Marriage Act yet no corresponding limitation exists in Muslim marriages.

The argument advanced by the Women’s Legal Centre Trust in this case is that there is no protection afforded to Muslim marriages in current legislation, as that which exists in the Marriage Act; Divorce Act and Recognition of Customary Marriages Act for all other marriages, and as a result there is a differentiation created between monogamous-and-polygamous Muslim marriages with those of civil marriages and monogamous-and-polygamous customary marriages. The main concern is that there is no equal protection for all spouses in the various marriage regimes under the Constitution and therefore the discrimination exists with Muslim marriages. Consequently children and spouses from/in Muslim marriages are discriminated against. 

Spouses of a customary marriage that meet the requirements of the Recognition of Customary Marriages Act 120 of 1998 have equal standing in the eyes of the law. Both parties may acquire and dispose of assets, enter into contracts and litigate. These marriages must be registered and the act further states that they are considered to be in community of property, unless the parties have agreed to a valid antenuptial agreement. Spouses and children in/from customary marriages therefore have full protection under the law. 

Spouses of a civil marriage entered into in terms of the Marriage Act 25 of 1961 (“the Marriage Act”) also enjoy equal footing in the law. These marriages are solemnised by a marriage officer and are registered by Home Affairs. The parties decide whether they will be married in community of property or out of community of property with or without the application of the accrual system. One spouse usually has a claim against the estate of the other spouse for division of the estate, an accrual claim or a spousal maintenance claim. 

Children born from civil and customary marriages are also protected by the Divorce Act and the Maintenance Act 99 of 1998 (“the Maintenance Act”). However children born in Muslim law have no such protection. 

After considering the views of the Women’s Legal Centre Trust and the opposition by the various State departments the court felt that it had no alternative but to recognise the discrimination against women and children in Muslim marriages.

In summary, the court ordered, amongst others, the following: 

1.     The State has to draft appropriate legislation that recognises Muslim marriages as valid marriages;

2.    The State has 24 months from the 31^stof August 2018 to implement this law;

3.    The court declared Muslim marriages to be dissolved through the framework of the Divorce Act with special application of Section 7(3) of the act that allows for the redistribution of assets in appropriate circumstances; and 

4.     Where a Muslim marriage is polygamous, the court dealing with the divorce shall take into account all the relevant factors and must make and order that is just and equitable. Any interested party may also be joined to the proceedings.

For the full judgment go to http://www.saflii.org/za/cases/ZAWCHC/2018/109.html.

For an in-depth discussion on divorces; maintenance or other family law matters contact our office for a consultation.

Written by Christelle Zietsman– a practising attorney at Alan José Incorporated.