Attempts to get Muslim marriages legally recognised look set to take the same path as mobilisations on same-sex partnerships that resulted in the Civil Union Act.
On Wednesday the Constitutional Court referred the Women’s Legal Centre Trust back to the high court for a ruling on whether it could impel the president to pass legislation on Muslim marriages within 18 months.
Judge Edwin Cameron said it was clear that both legal and factual issues around the case were in dispute and may require expert and other evidence. “A multi-stage litigation process has the advantage of isolating and clarifying issues as well as bringing to the fore the evidence that is most pertinent,” he said in his judgement.
The draft Muslim Marriage Bill, tabled in 2003, has been a point of contention and division in the Muslim community. The Mail & Guardian previously reported that the Women’s Legal Centre Trust’s application to the Constitutional Court received both backing and opposition from varied Muslim organisations.
Constitutional law expert Pierre de Vos said the Constitutional Court had made a similar decision when dealing with legislation around civil unions. That matter went from the high court to the Constitutional Court, back to high court and then to the Supreme Court of Appeal, before eventually returning to the Constitutional Court.
“The whole battle took about four years to conclude. By the time it was brought before Parliament, one of the two partners [who brought the case] had actually died,” De Vos said.
Meanwhile, women like Wahieda Khan (not her real name) say they remain at the mercy of religious organisations that do not always have their best interests at heart and a legal system that does not always recognise their marriages.
Last year, on the first day of the holy month of Ramadaan, while seated at the supper table with her family, Khan received a text message from her husband saying “Talaq, talaq, talaq [I divorce you, I divorce you, I divorce you]”. This declaration of divorce was later ratified by the Jamiat (religious organisation) in Pretoria, despite the fact she had been seeking a reconciliation with her husband.
“I had no choice in the matter. At no point did anybody ask me if I was okay with this,” she told the M&G. “I asked [my husband] to issue the divorce in the correct manner, with witnesses around. Until today, he has not said those words, and the Jamiat has not issued me with a piece of paper. The only proof of my divorce is an SMS,” she said.
Khan says she sought advice on the legality of such a divorce from the Muslim Judicial Council in Cape Town and from independent scholars and was told that the divorce was not final. The issue has not been resolved.
The draft Muslim Marriages Bill seeks to regulate Muslim marriages and divorce. One of its proposals is that couples would need to present themselves before a judge and witnesses in order to dissolve their marriage. If such legislation were passed, women like Khan would have clarity on basic issues such as whether they are still married or not.
While the courts have in the past ruled on issues such as inheritance and maintenance concerning Muslim marriages, the Women’s Legal Centre says such ad hoc legislation has limited application and that formal legislation on Muslim marriage and divorce is necessary.
Commenting on Wednesday’s decision, attorney Hoodah Abrahams-Fayker, who represented the Women’s Legal Centre, said: “I won’t say it’s a setback. We’re confident that legislation will be implemented. But it could take a long time [for the matter to be resolved]. For me that is the disillusioning part,” she said.
Aslam Mayat, an attorney representing the Women’s Cultural Group, one of the friends of the court, said that regardless of the outcome of the case, the Women’s Legal Centre should be commended for raising awareness around the issue and for “bringing something that had died a sorry, unnatural death to the fore”.