Muslim Marriages to be recognised in South Africa

The Muslim Personal Law saga has had a protracted and acrimonious history with the ulema divided. The umbrella body United Ulama Council of SA comprising all the provinces supports a Muslim Marriages Act, whilst one of its constituents Jamiat KZN and other leading ulema are opposed. Similarly with the  Muslim Lawyers, AMAL is in support, whilst MLA is opposed.

The Cape High Court has declared that Parliament had failed in its constitutional duty to pass laws recognizing Muslim marriages as valid and regulating the consequences of such marriages. The Court gave Parliament 24 months to pass such legislation, failing which all Muslim Marriages will be regarded as valid.

Any of the Respondents, comprising of the Government and Muslim bodies represented by Attorney Zehir Omar, could appeal the decision.

The judgment comes in 2 parts.

First during the 24 month grace period, the law remains exactly as it is, which is that on ad hoc, piecemeal, incremental basis the Courts do in fact give recognition to the consequences of a Muslim marriage. Therefore, although a Muslim marriage is not recognized as valid, the widow was granted loss of support damages under the MVA Act. Similarly, Muslim wives are now recognized as spouses to inherit under Intestate Succession. The consequences are in terms of South African Law, which may not accord with the Islamic position. For example, if you had an estate worth R1 million and 4 wives, the wives will share your entire estate equally, leaving your other Islamic Law heirs, namely your parents and children, with nothing. Because there is no legal framework, the position becomes muddied as vulnerable Muslim wives are forced out of necessity to go to the Courts to obtain relief under South African Law.

Secondly, if Parliament fails to enact such legislation during the grace cut off period, then the order automatically takes effect and all Muslim marriages are recognized as valid. Even after such marriage is dissolved in terms of Islamic Law, that marriage may also be dissolved under the provisions of the Divorce Act. Accordingly, children’s rights will be paramount and protected, and those who made nikah before the accrual system was introduced will, in the absence of an agreement, have to share their estates with their spouses on an equitable basis,

If the Cape order takes effect there will be problems. A number come to mind, but one will suffice. No time limit is set on when a spouse can come to Court to dissolve a Muslim marriage after it has been dissolved under Islamic Law. So, if after I issue a talak and thereafter marry 4 other ladies by nikah, could my first wife whom I divorced come back after 20 years when I win the Lotto and apply to Court under the Divorce Act to dissolve our already terminated marriage seeking financial redress.

I think the Judges realized they lacked sufficient & time knowledge to fully understand all the repercussions of their decision, so the at the time of implementation they left the door wide open for aggrieved persons to come back to court to amend the judgment.

The government, has the option of enacting a Muslim Marriages Act. The bitter contestation of  the 15 year MPL journey proves the difficulty faced by Government in drafting an Act  that can satisfy the ummah. The devil will be in the detail. The government could on the other hand, instead pass an omnibus Act recognising all religious marriages such as Muslim, Hindu & Jewish. This is the declared position of Government. However, this may not be possible because the Cape judgment goes further than merely ordering Govt to recognise the Muslim Marriages as valid, but also to regulate the consequences of such marriages. In my opinion, it is complex enough to regulate the consequences of a Muslim marriage, let alone a mari masala omnibus Act to deal with all the other faiths as well. This is last chance saloon for the ummah. If we do not grab this 24 month period to sit down, listen to each other, get mediation if necessary and arrive at consensus, Parliament or the Courts will have the final say and it may be much worse that we could have achieved by  sensible, courteous concessions, without compromising fundamental tenets of our faith.

Finally, I urge all not to leave it to the Courts and lawyers to decide your fate. Before you conclude a nikah go to a lawyer and conclude a nikah contract that spells out your proprietary position. You will omit to do so at your peril. ASLAM MAYAT

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