“We can boldly state that laws which discriminate on the basis of race, gender and other prohibited grounds have been removed,” President Jacob Zuma said in a statement delivered on behalf of the ANC’s national executive committee at the party’s 103rd anniversary in January.
This is not true for many Muslim women.
Muslim marriages in South Africa still do not have legal status — unlike unions entered into under civil or African customary law.
The Women’s Legal Centre is now taking the government to court for failing to pass legislation that will give recognition to Muslim marriages, despite a process having been on the cards since 1996 when the law reform process began.
Although a draft Bill was completed in 2003 by the South African Law Reform Commission and was published for public comment in 2011, there has since been no clear indication of when the legislation will be passed, says Hoodah Abrahams-Fayker, attorney and spokesperson for the centre.
“Law reform initiatives have stalled and women have been left to bear the brunt of the state’s failure to recognise Muslim marriages,” she says.
“In the absence of legal recognition of their marriages, Muslim women are often left with no access to property, money or resources in the event of divorce.”
The centre has overseen a number of cases in which Muslim women have been left destitute following a divorce and with no legal recourse. Some of these are documented in their application explaining why a Muslim Marriage Act is so desperately needed.
One such case involves a woman, listed only as Mrs N, who was married to her husband under Islamic law for 20 years. During their marriage, her husband allegedly did not allow her to work outside of the home and abused her economically. He is also alleged to have abused her physically and emotionally and engaged in extramarital affairs.
She eventually requested a divorce through the Muslim Judicial Council. But this could not be granted as her husband refused consent. After three years of failing to obtain a divorce, Mrs N’s husband finally granted her one. But the issues of child custody, division of the assets and maintenance were not addressed.
“Without the legal recognition and regulation of Muslim marriages, it is impossible to defend against situations that are similar, or even identical, to this one. Legislation is imperative in order to either give wives equal authority to terminate the marriage so as to create bargaining power on their behalf, or require husbands to register each divorce with the court so that, at a minimum, wives have notice of their husbands’ intent to divorce,” says Abrahams-Fayker.
“We were very disappointed when the registration of imams as marriage officers was portrayed as recognising Muslim marriages. We would like women to be aware that this is not the case.”
The case was due to be heard in the Western Cape High Court this month, but it has been postponed until December to give the president and the ministers of justice, constitutional development and home affairs time to prepare their response.
The case is being watched with keen interest by civil society and organisations such as the Centre for Child Law, the Commission for Gender Equality, Jamiatul Ulama Kwazulu-Natal, Lajnatun Nisaa-il Muslimaat, Majlisul Ulama South Africa, the United Ulama Council of South Africa, the Islamic Unity Convention, the Muslim Lawyers Association, the Muslim Youth Movement and the Muslim Assembly.
“The failure to provide substantially equal remedies to spouses in Muslim marriages as those available to spouses married in civil and customary law violates section 9 of the Constitution, which states that every-one is equal before the law,” says Abrahams-Fayker.
The centre is arguing that government’s failure to enact an equitable marital property regime, and to enact adequate ability to divorce, is tantamount to disregard for Muslim women. It denies them the same recognition and protection as women married under civil law and African customary law, or men married under Islamic law.