Khadija Magardie
The South African Law Commission’s (SALC) project committee has approved its discussion document and proposed draft Bill on Islamic marriages. The paper, which will be released for public comment, makes provision for the recognition of marriages contracted in terms of Muslim religious law. In addition, it regulates the proprietary consequences of such marriages, as well as provisions for their dissolution.
The release of the document follows years of lobbying by the local Muslim community for the recognition of Muslim personal law, as laid down by the Constitution. Section 15 of the Constitution allows for legislation recognising “systems of personal and family law under any tradition, or adhered to by persons professing a particular religion”.
The project committee, headed by supreme court Judge Mohamed Navsa late last week approved the latest document, which offers a radical interpretation of Muslim personal law, to bring it in line with the provisions of the Bill of Rights. It does not give Muslim marriages parity of status with civil marriages, but rather, through the recognition of Muslim personal law, brings such marriages within the domain and control of civil law, making them less vulnerable to abuse and exploitation by one partner of another.
The need for the recognition of Muslim marriages by the state was highlighted in the 1999 Amod v the Multilateral Motor Vehicle Accidents Fund (MMF) judgement, where the Supreme Court of Appeal found in favour of the recognition of a marriage contracted under Muslim law, for the purposes of duty of support in a civil claim. The Durban High Court had earlier dismissed the claim against the MMF on the grounds that the law did not recognise an action for loss of support by a Muslim against a spouse, because Muslim marriages were not recognised by law.
The discussion document as well as the proposed draft Bill provides for the registration of Islamic marriages. It sets up specially designated marriage officers, who are empowered to register the marriages, lays down a minimum age of 18 for both spouses, and recognises the equality of both spouses in terms of capacity to arrange the proprietary regime of the marriage, as well as to litigate.
The document also narrowly proscribes the conditions upon which an Islamic marriage may be dissolved from both sides, in a bid to halt abuse by means of arbitrary issuing of the talaq or divorce decree. In addition, it provides for the appointment of assessors schooled in Islamic law to assist a judge in court cases involving Islamic marriages.