New Law Relating to the Recognition of Muslim Marriages

The Constitution of South Africa, more specifically the Bill of Rights, enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. These rights must be respected, protected, promoted and fulfilled by the State. Such a huge task does come with certain challenges though. This is why there are ways in which the Constitution may be amended where necessary in order to accommodate this country’s ever modernising society.

An aspect of the Constitution and other laws of the Republic that has found itself lacking are those with regards to the recognition of Muslim Marriages and the spouses thereof.

At present, the law only affords limited protection to Muslim Marriages, and as such there have been numerous calls for full recognition of such a marriage in South Africa. In the case of Daniels v Campbell, the Constitutional Court was called upon to determine whether or not a spouse in a monogamous Muslim Marriage could be considered and recognised as both a “spouse” and “survivor” for the application of the Intestate Succession Act and the Maintenance of Surviving Spouses Act.

The Court agreed that the word “spouse”, in its ordinary meaning, includes a party to a monogamous Muslim Marriage. The Court further stated that the exclusion of such a person from the definition of a spouse “emanated from a linguistically strained use of the word flowing from a culturally and racially hegemonic appropriation of it.” The Court therefore ruled such an exclusion to be unconstitutional.

Years later this decision found itself in the spotlight. In the matter of Hassam v Jacobs, the High Court in the Western Cape extended the definition of the word “spouse” to include parties to a polygamous Muslim Marriage. Van Reenen J stated that the word “survivor” in the Maintenance of Surviving Spouses Act could include more that one spouse without unduly “straining the language of the Act.”

This matter was then referred to the Constitutional Court in order to provide the necessary force for such a decision to be binding. The Constitutional Court held that the exclusion of a spouse to a polygynous Muslim Marriage from the Intestate Succession Act is to be construed as an unjustifiably unfair discrimination on the grounds of gender, religion and marital status.

Another achievement for the recognition of Muslim Marriages was in the case of Khan v Khan in which the Court had to make a ruling as to whether or not there is a duty of support between the spouses of a polygynous Muslim Marriage. The Court stated that it is no longer contra boni mores to recognise parties to a polygynous Muslim Marriage. It would therefore be blatantly discriminatory not to recognise such a duty of support between those parties as is the case in a monogamous Muslim Marriage. As of this case, a spouse in a polygynous Muslim Marriage could now rely on the Maintenance Act to enforce this duty.

Maintenance has even gone so far as to find its way into divorce proceedings by way of a Rule 43 Application. In the case of AM v RM the Court granted a Muslim woman’s application for maintenance in terms of Rule 43 even though the parties had never actually entered into a Civil Marriage. In this case and in the case of Zaphiriou v Zaphiriou, the Courts held that the word “spouse” in Rule 43(1) of the Uniform Rules of Court must be interpreted as including a person who alleges that he or she is a spouse.

It can thus be seen that although there are some aspects of a Muslim Marriage that are protected by law, full recognition thereof is greatly lacking. As it stands, the Muslim Marriages Bill was drafted in 2000, however it is yet to be enacted as there has been plenty criticisms on the contents within. Muslim couples who choose to marry in terms of Islamic law may only be afforded the protection of the South African legal system if they are to register their marriage as a civil marriage as well.

On 31st August 2018 in the High Court of South Africa, Western Cape Division, Cape Town, the latest judgement on this subject (Women’s Legal Centre Trust v President of RSA and Others Faro v Bignham N.O. and Others Esau v Esau and Others (22481/2014 4466/2013 13877/2015) [2018] ZAWCHC 109) has been handed down. What sets this matter apart from those that precluded it is encapsulated in the following paragraph.

The matter before the Court did not compare the rights of Muslim women with other women as it was believed that this may result in warped conclusions and find no existence of discrimination. Instead, the Court referred to the case of Hassam v Jacobs in which it was held that Muslim women were in a detrimental situation if their position were to be compared to the position of Muslim men.

On such a basis, the Court found that the women in this matter would be able to show unfair discrimination and the Court further considered the fact that the lack of recognition of Muslim Marriages would infringe upon the dignity of Muslim women.

The Court had to further decide as to whether or not the State had fulfilled its obligations, and also as to whether or not there should be intervention by the State beyond the “piecemeal” litigation that has been adopted by the Courts on this subject.

After due consideration was given to the Separation of Powers Doctrine, the Court found that the only way to ensure that the rights of all Parties to a Muslim Marriage are protected, would be if the State were to enact the necessary legislation providing the much-needed recognition of these marriages.

Parliament has since been ordered to enact such legislation within the next 24 months. Pending the enactment of the legislation, the Divorce Act is now to apply to all Muslim Marriages entered into after this decision. What’s more is that section 7(3) of this Act; the section that grants the Court the power to make an Order on the Division of Assets upon granting an Order of Divorce; is to apply retrospectively to all Muslim Marriages.

So now what does this mean? The good news is that if you are a female spouse in a Muslim Marriage, whether it’s monogamous or polygamous, you will now be as protected as you would be had you entered into any other marriage regimen!

Duncan O’Connor

Candidate Attorney