A much debated topic amongst legal and religious scholars alike is the topic of the recognition of Islamic marriages in our South African legal system.
Our current legal system
Although all civil marriages in South Africa are regulated by the Marriage Act 25 of 1961 and more recently by the Civil Union Act 17 of 2006, and customary marriages are regulated by the Recognition of Customary Marriages Act 120 of 1998, the South African legal system currently does not recognise both Islamic and Hindu marriages. Spouses to an Islamic marriage are, therefore, only afforded statutory protection that civil spouses have in terms of the aforementioned Acts if they enter into a civil marriage or union in addition to the Islamic marriage entered into.
Despite the Constitution of South Africa being the supreme law of South Africa which, in terms of section 15 of its Bill of Rights, recognises that:
(1) “Everyone has the right to freedom of conscience, religion, thought, belief and opinion.
(2) Religious observances may be conducted at state or state-aided institutions, provided that
a) those observances follow rules made by the appropriate public authorities;
b) they are conducted on an equitable basis; and
c) attendance at them is free and voluntary.
(3) This section does not prevent legislation recognising
a) marriages concluded under any tradition, or a system of religious, personal or family law;”
A gap in our statutory law still exists. This gap has, however, not been overlooked, and the South African Law Reform Commission (“SALRC”) conducted a detailed investigation on this issue in 2003.By 2011 the Muslim Marriages Bill (“the Bill”) was sent to parliament for comment. This came with much opposition by the Muslim Lawyers Association who contended that the Bill is un-Islamic and that religious marriages should not be regulated by a secular State. This is one of the reasons why we have up until today still not seen any light on the Bill being passed and promulgated. Our courts have, however, over the years tried to fill the gap that our statutory law fails to fill and we are now slowly seeing a shift from the rigid pre-Constitutional era to a system which “protects, respects, promotes and fulfills the rights in the Bill of Rights” (in terms of section 7(2) of the Constitution of the Republic of South Africa).
Through judicial developments on a number of issues pertaining to family law, attorneys are now able to properly advise clients on their rights and the risks of entering into an Islamic Marriage.
In the case of Ryland v Edros1997 (2) SA (C), the parties entered into an Islamic marriage and upon divorce, it was alleged by the Plaintiff that an Islamic marriage gave rise to a “contractual obligation” from which maintenance would flow. Giving consideration to the rights contained in the Constitution, the Court in casu held that even in “Islamic Law” it is considered that “A wife is entitled to be maintained by her husband according to his means during the subsistence of the marriage (and) for three months’ (after repudiation (talaq) of the marriage)” and therefore affirmed that an Islamic marriage also carries maintenance obligations. The Court in casu however side-stepped the issue as to whether parties to an Islamic marriage were entitled to an equitable share of each other’s estate.
In the case of Daniels v Campbell2004 (5) SA 331 (CC), an application was made to the Constitutional Court by a widow to a monogamous Islamic marriage, alleging that section 1 of the Intestate Succession Act81 of 1987 (“Intestate Succession Act”) and section 2(1) of the Maintenance of Surviving Spouses Act27 of 1990(“Maintenance of Surviving Spouses Act”) was unconstitutional as the words “spouse” and “survivor” therein only applies to a marriage recognized as valid in terms of South African Law, which of course does not include Islamic marriages. The Court in casu found that the section 1 of the Intestate Succession Act and section 2(1) of the Maintenance of Surviving Spouses Act was indeed unconstitutional and extended the meaning thereof to include a spouse and survivor to a monogamous Islamic Marriage.
In the case of Khan v Khan2005 (2) SA 272 (T), the Court went one step further than in the case of Ryland v Edros and held that “polygamous marriages are a type of family and should be protected by family law”. The court further held that public policy has changed with the inception of the Constitution and that the argument that it is contrary to public policy to grant a Muslim wife (in an Islamic marriage) maintenance where the marriage is not monogamous, can no longer hold water. It went further to state that it would be blatant discrimination to grant, in the one instance, a Muslim wife in a monogamous Islamic marriage a right to maintenance, but to deny a Muslim wife in a polygamous Islamic marriage and who has the same faith and beliefs as the one in the monogamous marriage, a right to maintenance”. The Court therefore extended the right to maintenance to include a spouse to a polygamous Islamic marriage. In the case of Hassam v Jacobs2009 (5) SA 572 (CC) the Constitutional Court extended section 1 of the Intestate Succession Act to allows spouses who were part of a polygamous Islamic marriage to also inherit intestate.
The way forward?
Although our Courts have attempted to alleviate the position of spouses in both monogamous and polygamous Islamic marriages, the relief is still piecemeal and spouses are not treated equally in all respects.
The Muslim Marriages Bill seeks to address this inequality by recognizing both monogamous and polygamous Islamic marriages as part of our legal system and therefore carrying the same responsibilities and rights as other marriages recognized in South African Law.
The question that then begs to be asked is what, in terms of the Muslim Marriages Bill, is a marriage? Apart from the requirements of a valid Islamic marriage as set out in section 5 of the Bill, an Islamic marriage is “deemed to be a marriage out of community of property excluding the accrual system, unless the proprietary consequences governing the marriage are regulated by mutual agreement of the spouses, in an ante-nuptial contract which must be registered in the Deeds Registry” (in terms of the Muslim Marriages Bill, Government Gazette Notice 37 of 2011). Spouses to an Islamic marriage will, therefore, never be considered to be married in community of property. This may prove tricky for spouses who are not financially able to conclude an ante-nuptial contact in which case their estates will simply be dealt with as separate estates despite the intention between the parties, which can be argued to result in inequality in itself. It will, however, be interesting to see the application of the Bill in practice if it is approved and promulgated.
Noorjehaan Edros | Associate | Dispute Resolution: Litigation and Arbitration
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. Errors and omissions excepted (E&OE)