Recognition of Muslim Marriages in South Africa
Recognition of Muslim Marriages in South Africa
Muslim women in South Africa who are married only in accordance with Islamic law, are now afforded some retribution in the form of a recent Western Cape High Court judgment (“the Court”), where the Women’s Legal Center (“WLC”) launched an application for the recognition of Muslim marriages in South Africa. The main purpose of the application brought by the WLC, is to provide Muslim women who are married in accordance with Islamic law but not civilly, and the children born of such marriages, with the necessary legal protection mainly upon the termination of such marriages.
The applicants in the matter requested that the Court, not only make an order declaring that the state enact legislation to recognize Muslim marriages as valid marriages, but also that it had failed to fulfill its constitutional obligation to protect, promote and fulfill various constitutional rights.
Judge Siraj Desai presiding over the matter said that, “It is declared that the President and the Cabinet have failed to fulfill their respective constitutional obligations and such conduct is invalid.” The Court then ordered that the President and Cabinet, together with Parliament, are directed to rectify the failure within 24 months of the date of the order. The order was given on 31 August 2018.
The Court went on further and stated that, should legislation not be enacted within the next two years, a union which is validly concluded as a marriage in terms of Islamic law and which subsists at the time that the order becomes operative (which should be around 31 August 2020), may be dissolved in accordance with the Divorce Act 70 of 1979 and that all the provisions of that Act be applicable.
The Effect which the Non-recognition of Muslim Marriages has on Women
The process for recognition of Muslim marriages in South Africa began in 1996 but came to a halt in 2012 after the Bill was published for comment. Consequently, Muslim marriages are still not legally recognized in South Africa which means that Muslim women are not afforded the same legal protection as women who are married civilly or in accordance with African customary law.
Most of these women have sacrificed studying and job opportunities to have children, raise a family, build a home and support their husbands with building their own careers, however, in the event that after 30 years of marriage, the husband leaves her, and with no assets accruing to her during the marriage because the marriage has not been registered civilly, she has no financial stability and in drastic circumstances, could potentially face homelessness.
Advocate N Bawa SC for the WLC argued that “Legislation offers protection of some women and children, but excludes those who are Muslim. Annually the WLC gets 1800 to 2000 clients and 15% of those are women-related queries directed to Muslim law.” Bawa further added that majority of the WLC clients with queries relating to this matter are much older, not educated and have not registered their marriages.
In light of the above, women and children in Muslim marriages have few safeguards to protect their interests especially when it comes to divorce and inheritance. This is especially so where in a polygamous marriage, where one marriage is concluded in terms of Islamic law and the other is in accordance with civil law, when the civil marriage is dissolved for any reason, the woman married in respect of Islamic law has no protection or recourse.
Some of the older generation of women are unaware that their marriage carries no legal protection and some of them who are aware have no bargaining power to convince their husbands to register the marriage civilly. Evidently, this situation can produce many hardships.
The Constitutional Arguments Made by the Applicants
It is important to note that Section 15(3)(a)(i) and (ii) of the Constitution permits for legislation for the recognition of Muslim marriages in South Africa. “Marriages concluded under any tradition, or system of religious, personal or family law; or systems of personal and family law; or systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.”
Further, Section 7(2) of the Constitution states that, “The state must respect, protect, promote and fulfill the rights in the Bill of Rights.” The Court found that this imposes an obligation on the state to enact laws to protect rights that are being breached.
The relevant sections of the Bill of Rights which the WLC primarily focused on, was Section 9(1) which provides that, “everyone is equal before the law and has the right to equal protection and benefit of the law” and Section 9(3) which provides that, “the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status…”
In light of the above provisions, the WLC contended that Muslim women are unfairly discriminated against on the basis of religion, marital status, gender and sex. It argues that the states omission of the recognition of Muslim marriages in South Africa, or to amend legislation to regulate Muslim marriages is in direct conflict with Section 9(3) of the Constitution on grounds of religion and marital status and indirect discrimination on the ground of gender and sex.
The Court found that considering the complexity and importance of marriage, the only reasonable and effective way the state could fulfill its obligations in Section 7(2) of the Constitution was by enacting legislation that recognized Muslim marriages.
It has been a protracted process to get to this point but this judgment serves as confirmatory proof that relief for Muslim women is not too far away. Should this matter be taken on appeal to the Constitutional Court, the two year period within which the state has to remedy this issue, may be deferred even further, however, considering how long it has taken to obtain a favorable Court order for Muslim women, news of a further minor delay to receive the Constitutional Court’s finalization on the issue, may not be such a difficult pill to swallow.
This judgment is a victory for not just Muslim women, but for all women who have been, or are discriminated against because of gender, sex, marital status, ethnicity, color etc. or oppressed because the requisite legislation has not been enacted to offer them the necessary protection. With gender inequality and discrimination still prevalent in South Africa and throughout the world, this High Court ruling is not just a step in the right direction, but a milestone in what intends to achieve.
Women’s Legal Centre Trust v President of the Republic of South Africa and Others, Faro v Bingham N.O. and Others, Esau v Esau and Others (22481/2014, 4466/2013, 13877/2015)  ZAWCHC 109 (31 August 2018)
Women’s Legal Center “The Recognition of Muslim Marriages”
The Constitution of the Republic of South Africa, 1996