Muslim nuptial contracts – progress at last?

The formal designation of imams as marriage officers by the home affairs department ushers in a new phase in the recognition of Muslim marriages in South Africa. This is perhaps the simplest avenue the state could have used to allow South African Muslims to enjoy the constitutional protections of religious freedom and access to justice.

The continued lack of recognition of Muslim marriages in the post-apartheid era means that under South African law spouses in a Muslim marriage are ordinarily denied inheritance and other rights; women especially are denied spousal support and a fair distribution of property at the dissolution of a Muslim marriage. But it now appears that all of this is about to change.

Last week, more than 100 imams graduated as marriages officers after they sat for a three-day training workshop and passed an exam. These imams are required to comply with the legal requirements of the South African Marriages Act of 1961. Marriages performed by them will now have automatic state recognition, and from the onset of a marriage Muslim spouses will be protected under South African law.

Among the questions that arise now is how imams and the state intend to manage the mismatch between the civil law system of marriage and the Islamic law system of marriage, especially at the point of death or divorce.

According to the deputy minister of home affairs, Fatima Chohan, current legislation allows all couples to notarise an antenuptial contract to regulate the consequences of their marriage. That same mechanism also affords Muslim couples the opportunity to notarise an Islamic marriage contract.

A number of Muslims already use the civil marriage system with an antenuptial contract, which in some cases they also adjust further to include clauses specific to an Islamic marriage. This new move prompts South African Muslims to adopt legal practices that align closely with the historical approach to Islamic marriage.

The Qur’an calls marriage a solemn, weighty contract and marriage contract negotiations are standard practice in other parts of the Muslim world. Although the different schools of law may differ on what may be negotiated, Islamic legal history and current practice show that Muslim communities negotiate marriage contracts extensively.

Under the new arrangements with the state every marriage conducted by a designated imam will automatically have state recognition and imams will be compelled to inform betrothed couples on the need for a notarised antenuptual contract that accords with South Africa’s constitutional provisions.

We can’t be sure yet how this new arrangement will serve Muslim couples through the course of marriage, but what it offers is an opportunity for Muslims to tap into a well-established Muslim legal practice of negotiating and writing marriage contracts in a more meaningful way and in close accordance with the tenets of Islam.

The prompt designation of imams as marriage officers contrasts with the 20-year-long process begun in 1994 that culminated in the Muslim Marriages Bill presented to the ministry of justice not long before the 2004 election. After a wait of almost seven years and further public submissions the Bill was eventually tabled in Parliament.

Nothing more was heard of it until 2013 when the Women’s Legal Centre approached the Western Cape high court, which subsequently set the government a July 15 2014 deadline to show progress in the enactment of the Bill.

In spite of the designation of imams, however, there remains cause for concern. Firstly, we cannot yet know how these marriages will be treated at the point of dissolution. Secondly, contrary to the Muslim Marriages Bill process, which has been somewhat open, the designation of imams has not been open to the public.

Common to both efforts to recognise Muslim marriage in South Africa is the failure to include women’s voices. In consultation on the Muslim Marriages Bill, outside of requests for submissions, the government limited its primary consultation to the religious fraternity and formal bodies of Muslim lawyers.

South African law and Islamic law both allow for women to solemnise marriage, and there are a few Muslim women who do perform Muslim marriages in South Africa. Yet it is significant that not a single woman features among the designated marriage officers.

What is significantly different about this latest development is that it occurs under the legal ambit of the ministry of home affairs, where both the minister, Naledi Pandor, and the deputy minister are Muslim women. Together they have determinedly and courageously succeeded in breaking a 20-year-long deadlock and have opened a way forward in what seemed like an insurmountable impasse. In time, we will discover the extent to which their reforms provide justice for Muslim women.

The exclusion of other Muslim women can be remedied by the designation of female marriage officers, consultation with women’s groups, and by relying on women’s voices in future processes regulating Muslim marriage.

If South African Muslims want to improve the situation of women in Muslim marriages, they will take this opportunity to have marriages solemnised by designated marriages officers and to draw up contracts that highlight the Islamic requirements of justice, compassion and love, thus realising their constitutional rights to equality, access to justice and freedom of religion.

Dr Fatima Seedat holds a PhD in Islamic law from McGill University and is a postdoctoral fellow in religious studies at the University of Cape Town. Farhana Ismail is a pre-marital coach, a family mediator and a committee member of Masjid ul-Islam.

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