If the Muslim Marriages Bill is passed and becomes enforceable legislation under South African law, it will address inequalities regarding the recognition of Muslim marriages.
The South African democracy is 28 years old and Muslim marriages (both monogamous and polygamous) are still not recognised in terms of the law.
The Muslim Marriages Bill, which aims to address this, was approved in 2010 but was not passed into law. This leaves Muslim women vulnerable in cases of divorce or the intestate death of a spouse, because their marriage is not fully legally recognised.
Despite Muslim marriages not being fully recognised in South African law, our courts have heard various matters that have further highlighted the need for the recognition of Muslim marriages, as the courts have had to give effect to the Constitution by developing case law.
In the case of R v R and Others the court recognised that the definition of “marriage” included couples married in terms of religious rites. The court held that a marriage in terms of Islamic law is recognised for the purposes of payment of maintenance to a spouse.
In Daniels v Campbell NO & Others the court recognised that a woman married according to Islamic law is a spouse in terms of the Intestate Succession and Maintenance of Surviving Spouse Acts. But this case applied only to monogamous marriages.
A matter championed by De Klerk & Van Gend Attorneys was the landmark case of Hassam v Jacobs NO and Others. In this case the courts took recognition a step further by recognising polygamous marriages and the proprietary consequences thereof where, prior to this, the polygamous nature of Muslim marriages were viewed as contra bonis mores (against the views of society).
The above demonstrates that married Muslims in South Africa are not awarded the full protection that they should be receiving without having to litigate first.
The judgment in The President of RSA v Women’s Legal Centre Trust; Minister of Justice and Constitutional Development v Faro; and Minister of Justice and Constitutional Development v Esau handed down on 18 December 2020 by the supreme court of appeal was significant in terms of the recognition of Muslim marriages in South Africa.
The court held that both the Marriage Act and the Divorce Act contravene sections 9, 10, 28 and 34 of the Constitution. The acts fail to recognise marriages solemnised in terms of sharia (Islamic) law and marriages annulled in terms of the sharia.
The court further held that the invalidity of the Marriage Act and the Divorce Act is suspended for two years (24 months) to allow the executive and legislature to correct the legislation. This can either be done by amending the current legislation or by the passing of new legislation to recognise Muslim marriages.
The Muslim Marriages Bill
As previously mentioned, the Muslim Marriages Bill was first approved in 2010 and has still not been passed into law. Should the bill be passed in future, what would this mean for couples who are already married, and would there be any significant changes for couples who still wish to get married in terms of Islamic rites?
Opting in or opting out
Couples who get married after the commencement of the Act will be able to elect whether to be bound by the Act or not. Couples who were married prior to the commencement of the Act will automatically be bound by its provisions but can choose to opt out within 36 months of the date on which the bill is passed. This creates an automatic protection for Muslim couples who were not able to marry under the Act and affords them the same benefits as those who will marry after it is passed. If a couple chooses to opt out of the Act, this will amount to application of the law as it was prior to the commencement of the Act.
Registration of the marriage
For marriages that were concluded prior to the commencement of the Act, couples have two years in which to register the marriage. Marriages entered into after the commencement of the Act would need to be registered at the time the marriage is concluded.
The default position under the Muslim Marriages Bill is out of community of property excluding the accrual system unless the couple agree otherwise in terms of an antenuptial contract.
The Muslim Marriages Bill seeks to recognise Muslim marriages in the South African law context and in doing so it also aims to protect vulnerable parties in a marriage upon divorce or death.
Even though the bill has not yet been passed there are evident benefits to it and that it will be beneficial to married couples, should they wish to opt in. Furthermore, there is increased pressure from the judiciary for this bill or any alternate law to be passed. We look forward to seeing what the future holds in this sphere of the law.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.