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Muslim marriages – officially recognised as legal in South Africa

Marriage

Progress at last for Muslim marriages

As from 30 April 2014 Muslim marriages in South Africa are officially recognised as being legal. This change in the law has been described by many as being more than 300 years in the making.

Recently, more than 100 Muslim clerics, or imams, graduated as marriage officers allowing them to officiate over Muslim unions that will now be recognised by law.

Before this date, couples who wed under Muslim rites were not bestowed the same rights as those couples who wed under South African civil law. This lack of legal recognition has had devastating and unfair consequences, particularly for female spouses in Muslim marriages.

Whereas the rights of a spouse in a civil marriage are protected under the ‘in community of property’ or ‘out of community of property’ regimes, and whereas divorce is equally regulated, under Muslim rites spouses were not offered this same level of protection and regulation.

There have been various cases to come before our Courts over the years which have made successful inroads towards having the rights of spouses in Muslim marriages recognised in the same way that those in civil marriages enjoy.

Intestate Succession

For example in 2004, in Daniels v Campbell NO [Daniels v Campbell NO and Others 2003 (9) BCLR 969 (C)], the now late Mrs Suleiga Daniels lost her house as the Master of the High Court could not by law recognise her as the legitimate surviving spouse of her late husband, Mr Daniels, to whom she had been married according to Muslim rites for over 17 years.

After a long and arduous battle fought by Mrs Daniels, the Constitutional Court eventually held that a spouse in a monogamous Muslim marriage should be included in the definition of the word “spouse” as referred to in the Intestate Succession Act and should also be included in the definition of a “survivor” in terms of the Maintenance of Surviving Spouses Act. Before this judgment, these Acts only granted rights to spouses married in terms of civil law.

In 2008, the Courts went even further in Hassam v Jacobs NO [Hassam v Jacobs NO 2009 (5) SA 572 (CC)] and held that both wives in a polygamous Muslim marriage would be entitled to inherit from their spouse’s estate.

Property Rights

Under Islamic Law, the matrimonial property system is classified as being ‘out of community of property’. Therefore upon the dissolution of a marriage, each spouse would retain all assets and liabilities that accrued in her separate estate. Therefore, in order for a wife to protect her rights to immovable property which was registered in her husband’s name for example, it would be vital for her to have the property also registered in her own name. Now that the marriage would be recognised as legal, a wife should have recourse to more rights by virtue of the marriage.

Divorce

The new legal recognition has however, not been too specific when it comes to dealing with divorce. As previously stated, under Islamic law every marriage is classified as being ‘out of community of property’. This means that every Muslim marriage conducted by a designated imam will automatically have state recognition and imams must advise Muslim couples about the need for notarised Antenuptial contracts that abide by the Constitution.

Until divorce proceedings are brought before the Courts, it remains to be seen how the changes will impact upon these couples, however, what is clear is that women in Muslim marriages now stand to have far better protection under South African marital law.

It is a shame that Mrs Daniels was not alive to see this ground-breaking change in the law. However, her daughter, Yasmina Mohamed has spoken out on her behalf and is proud that Muslim marriages will be recognised at last and that Muslim women will now be better protected. Her mother had fought a very long battle to achieve the constitutional rights to equality, access to justice and freedom of religion for all Muslims. The 30th of April 2014 was that day.

For further information or legal advice, please contact:

Juan Smuts , Divorce and Family Law expert, Abrahams & Gross Attorneys

 021 422 1323   info@abgross.co.za

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