A double-edged sword of victory

It’s wonderful that we have such a fabulously celebrated, all-embracing Constitution, but sometimes it can work against us women. Like the Recognition of African Customary Marriages Act four years ago, Muslim marriages could soon become legal in South Africa.

The Constitutional Court last month gave recognition to Muslim marriages for the purpose of inheritance. Under the apartheid regime they had no legal status — the change will be a welcome one for thousands of men and women who faced gross discrimination by the secular courts because their unions were deemed ”against public morals”. But it is a double-edged sword of victory for us.

I’m a Muslim woman in a country where Muslims comprise less than 5% of the population and I have choices on who I marry, what I do with my body, whether I

study medicine or architecture, and, above all, on whether I even want to be a Muslim or not.

Thank heavens for the South African Constitution (phew!). And here’s a toast (a halaal one) to not being a Muslim woman in other, less illustrious parts, where I’m likely to either get divorced via SMS in Dubai or lose my children in a divorce court in Iran.

For those who think the Sharia of stoning adulterers is vastly different to the genteel domesticity of Islamic family law, they’re not. In the arena of family law, Islam is perhaps even more unwielding. 

Which is why any self-respecting feminist who doesn’t want to see her sisters in Bo-Kaap or Lenasia swept under the carpet of oppression, should keep a careful eye on South Africa’s legislators. These are some of the reasons why: in ”Islamic law” men can toss wives out on their ear with a ”three strikes and you’re out” divorce; women may only divorce their husbands if they are impotent, bankrupt or dead; and children are the automatic property of the father. It is a pretty humungous leap back a few centuries, I’d say. 

But not all is lost, as those Muslim men who would think they can have their way the same way the lads of the seventh century Arabian peninsula did, will be disappointed. 

When Parliament signs the draft Bill into law, Muslim marriages will finally (as is their due, of course) be given legal recognition.

When the new law comes into effect, an Islamic divorce will have to be confirmed by a court of law, women may apply for a divorce (they can’t, traditionally speaking) on the grounds of ”irreconcilable differences”, and a court will decide on custody of children.

As the Women’s Legal Centre, a Cape-Town based NGO that has lobbied for a change in the law for ages, says, ”Now you can’t just begin and end a relationship without the intervention of the courts.”

Still, the draft Bill as it stands is dodgy and cause for concern. Firstly, there is an ”opt-out clause” — where the partners could choose not to be governed by any of the law’s provisions, and instead choose to be governed by ”Islamic law”. It’s rather like giving a Muslim man carte blanche to offer his prospective wife: ”Honey, you can decide whether or not you want rights in our marriage.” Charming!

By far the biggest concern is what happens when the marriage ends and you have no contract stipulating who gets what. In civil marriages and even African customary marriages, community of property is the fall-back position, meaning everything gets split. If this law is passed in its present form, for Muslims the opposite is true — the marriage is out of community of property.

The ”experts”, with whom the Law Commission consulted perhaps a bit too extensively, argue this is the ”proper” way. More often than not, a Muslim woman is discouraged from working outside the home, vests her time, energy and efforts in her family, and is packed off to her mother’s with nothing to show for it if there is a divorce. 

The Qur’an does not exclude women from working, but a husband has an absolute authority over his wife’s movements. He can forbid her to work, or from going to the mosque or to her mother’s funeral. 

It bodes ill for the state of Muslim women that their marital assets not be split entirely down the middle on divorce. In such a contested and nebulous arena, the Law Commission, which is leading the reform process, says all matters on Islamic marriages should be heard by a judge and two assessors ”who are experts in Islamic law.” But who qualifies as an ”expert”? 

I know of loads of self-declared ”experts” around every corner who are all, and this should come as no surprise, men. Given the levels of conservativism, I’d be worried if they’d be presiding over my divorce. Islamic laws around the marriage contract are far from divinely sanctioned (the Qur’an is silent on it), but are rather laws developed by men working at a particular time and place. Specifically, seventh-century Arabia. How could they possibly be relevant to a society like ours, where women work, drive cars and support themselves?

One also wonders whether the middle ground could be reached. And why Muslims, being minnows in terms of numbers, should be governed by their own special laws. It’s clear that reform of the law is necessary, but some have argued that instead of the brouhaha over changing laws, Muslims should draw up contracts upon marriage, where they can stipulate what happens if they divorce. But, as the Women’s Legal Centre points out, less than 10% of all civil marriages include contracts — coupled with the fact that matrimony is not the most level-headed of occasions. 

I think every Muslim woman should contract a civil marriage, in community of property, to protect herself. It remains up to anyone with a conscience who wants to ensure that custom or culture is not used to the detriment of women, to make their voices loudly heard when the draft Bill comes before Parliament.