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Pillars of Justice

Recognition of religious marriages

Religious marriage is a marriage that is entered into in terms of certain religious views and rituals, such as Islamic faith. These types of marriages consist of only religious contents, and it is not performed by any government institution conforming to marriage laws of the jurisdiction. Previously, Muslim marriages were not legally recognized in South Africa. The main reason for non-recognition of these marriages was because such marriages contain elements (such as polygyny/polygamy) that to a great extent is believed to violate women’s rights to dignity, and right to gender equality.

Section 15(3) of the Constitution of South Africa provides that laws that recognize religious and traditional marriages can be passed. These laws are passed in order to regulate marriage, divorce, inheritance, maintenance, and any other matters which affect children. This is an important change from the apartheid era as marriage was narrowly defined as a union between a man and a woman in terms of the common law. This meant that marriage that was regarded as legal in South Africa was characterized by monogamy and heteronormativity.

In the apartheid era, the legal definition of marriage excluded polygynous and same sex marriages. Polygynous marriages such as Muslim marriages, and African customary marriages were affected by this. The new post 1994 South African Constitution enabled the “recognition of different forms of marriages, including traditional and religious marriages”. In 1998, Recognition of customary marriages Act 120 of 1998 was passed which fully recognized African customary marriages and also, since 2006, same-sex marriages have also been legalized in terms of the Civil Union Act 17 of 2006. Unfortunately, Muslim marriages and some other religious marriages were left out and remained unrecognized.

South African law argued that the practices of Muslim marriages were against the public policy. This was confirmed in the case of Ismail v Ismail, where the court held that contractual obligations arising from Muslim marriage could not be recognized as it is against the public policy. Other possible reasons which caused delays in the recognition of Muslim marriages was that they include compulsory waiting period for women after the dissolution of the marriage to remarry, lack of proper maintenance arrangements, and also the possibility of unilateral divorce by the husband whereby he can decide to terminate the marriage without the consent of his wife.

However, failure to recognize Muslim marriages in South Africa violated several constitutional rights of women and children as they were the most affected. This meant that the state is failing to fulfil its constitutional obligation which is to “respect, protect, promote and fulfil the rights in the Bill of Rights and to perform its constitutional obligations diligently and without delay”. In 2010, the Muslim Marriages Bill was tabled and this gave hope to Muslim spouses as they believed that their rights will finally be protected. However, the Muslim Marriages Bill was never translated into law.

Matrimonial Property regime of Muslim before Women’s Legal Centre Trust v President of the Republic of South Africa.

Muslim marriages are considered to have been concluded out of community of property which excludes the accrual system. This means that Muslim law does not recognize the system of community of property as in civil law. The consequences of this system are that spouses that are in Muslim marriages do not share their assets at the dissolution of their marriage, each party retains his or her own assets.

In terms of Muslim law, contributions that are non-tangible in the marriage such as taking care of children are not considered to have the same value as tangible contributions. This causes problems for spouses married under Muslim marriages when it comes to divorce. Spouses that bring non-tangible contributions to the marriage are left with nothing when they divorce.

Women’s rights to divorce and post-divorce maintenance prior to the recognition of Muslim marriages.

When Muslim marriages are terminated, serious consequences ensue, and women generally find themselves in a disadvantaged position. This is because there was no law that regulated Muslim marriages. As a result, non-recognition of religious marriages opens doors for “gender discriminatory religious rules and practices”.

Muslim law entitles the husband the right to unilateral divorce Talaq whereby the husband terminates the marriage without the consent of his wife. The woman is given a waiting period of three months in which the man can either decide to take her back or separate. In situations like this, women do not have the right to revoke their husband’s decision of divorce. This can be argued to violate gender equality as according to schools of jurisprudential thoughts, the consent of the husband is required when a women initiate an irrevocable divorce khul’ and not vice versa. Women’s rights to equality are infringed, as divorce cannot be said to be valid when initiated by women without the consent of their husbands.

When a marriage is terminated by Talaq, during the waiting period mentioned above, the wife receives maintenance from the husband. But this maintenance is only for the three months waiting period. The rules and practices of Islamic law do not allow men to support their ex-wives after the waiting period has passed. The wives do not have the rights in terms of their law to claim for maintenance after divorce. However, when it comes to the issue of maintenance, the courts intervened in some cases. In the case of Hoosain v Dangor, the wife brought an application for maintenance of her daughter and herself in terms of the Rule 43 of the Uniform Rules of Court. The court held that the husband has a duty to support his ex-wife and child regardless of the fact that they were married in terms of Islamic law. This decision is contrary to the Islamic law principles and the effects of this is that the duty of maintenance in Muslim marriages extends beyond dissolution.

Recognition of Muslim Marriages: Women’s Legal Centre Trust v President of the RSA

After such a long battle, Muslim marriages were finally recognised in South Africa on the 28th of June 2022. This took centre stage in the case of Women’s Legal Centre Trust v President of the Republic of South Africa and Others, where the Constitutional Court held that failure to legally recognise Muslim marriages, and also to regulate the consequences that arise from marrying in terms of Muslim practices are in violation of the constitutional rights of women and children’s especially to dignity and equality. The Constitutional court concurred with the Supreme Court of Appeal in its decision and held that our law failed to:

  • “provide for mechanisms to safeguard the welfare of minor or dependent children of Muslim marriages as is provided for those of other marriages that are dissolved;

  • provide for the redistribution of assets, on the dissolution of a Muslim marriage, when such redistribution would be just;

  • make provision for the forfeiture of the patrimonial benefits of a Muslim marriage at the time of its dissolution in the same or similar terms as it does in respect of other marriages that are dissolve.”

The Court confirmed that therefore these practices violate the constitutional rights of women and children.

The Constitutional court declared in its judgment that the common law definition of marriage, the Divorce Act 70 of 1979, and the Marriage Act 25 of 1961 are inconsistent with the constitution as they failed to recognize marriages entered into in terms of Islamic law. The legislature was given 24 months to amend these two legislations which were declared unconstitutional. Consequences arising from Muslim marriages must be regulated in the new or amended legislation to ensure that the rights of children and women married in terms of Muslim marriages are protected.

The Court also held that before the new or amended legislation comes into force, the Divorce Act will now apply to all Muslim marriages concluded from the 15th of December 2014. These marriages will still be regarded as out of community of property but the difference is that the spouses will now have a choice to choose their matrimonial property regime.

Section 7(3) of the Divorce Act which states that “spouses married out of community of property before 1984, may apply to the court for a redistribution of assets, despite their marital regime being out of community of property”. This section now also applies to spouses married in terms of Muslim marriages. The Divorce Act will not only protect women married in terms of Muslim marriages but it will also protect children born of these marriages.

Women’s Legal Centre Trust v President of the RSA remedies many problems that were encountered by the courts in the past due to the inability to apply legislations such as the Divorce Act in Muslim marriages. For instance, in the case of AM V RM the husband argued that the marriage between him and his wife was dissolved by divorce in terms of the Islamic law. The judge discovered that it is not necessary to investigate whether the marriage between them is truly dissolved, but rather the inability to apply the Divorce Act to Muslim marriages causes a challenge to divorce by talaq in terms of the Islamic law.

Conclusion

It is clear that spouses that are married in terms of Muslim marriages do not receive sufficient protection from the Islamic law. In this regard, women are the ones that are deeply affected by the non-recognition of religious marriages as they suffer discrimination at the hands of their husbands. The enactment of religious marriages legislation and the application of Divorce Act and the Marriage Act to Muslim marriages will offer better protection to women and children constrained by Islamic rules and practices which are unconstitutional.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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