Couples entering a marriage by way of Muslim rites first, can utilise the Imams as Marriage Officers (IMO) route thereafter in order to gain civil recognition as well. This broadens a Muslim couple’s umbrella of legal protection if any dispute arises in respect of divorce, maintenance, death and inheritance.
The IMO programme itself does not bestow legal recognition on all Muslim marriages, neither retrospectively nor prospectively. Muslim couples are recommended to register their marriage under the civil law for various practical reasons at their own discretion and for personal reasons.
Islamic marital protocols
However, prior to this, couples have to enter a contract that is Out of Community of Property, with an Ante-Nuptial contract, without the accrual clause. Those who do not have one would be advised by the Imam to enter one before solemnising their civil marriage as the Islamic marital regime is one that is premised on Out of Community of Property, without the Accrual system. Thereafter one’s Islamic Will would also be valid and enforceable.
This approach places a great deal of focus on the marriage contract itself that parties need to agree on. After approaching an IMO, the first consultation would allow the couple to undergo pre-marital counselling. The fact that an Imam can advise you from an Islamic perspective on what is best, can be regarded as informative and of assistance to couples where civil and religious aspects may clash and how to possibly avoid the two.
Marriage contract guidance recommended
Presently, guidance on marriage contracts happen to be ideal as young couples intending to get married should be knowledgeable thereof when negotiating their contract, especially the proprietary consequences and other terms therein. Couples that have entered marriage already without giving much attention to the contract and the proprietary consequences attached thereto find themselves saddled with these issues.
Civil marriage considerations
Couples that do not register their marriages according to SA law would find themselves facing potential issues. Without a registered civil marriage, one may find difficulty when attempting to register one’s offspring under the father’s surname as Shari’a law prescribes that children should bear the name of their father.
For example, if a couple enters an Islamic marriage only and later on decides to enter a civil marriage without the proper consultation, they could be blindly entering our civil law marital regime, one that is in Community of Property – a system that would be in conflict with Shari’a law in respect of marriage and inheritance
Hence, couples who enter a civil marriage can prevent any religious and secular conflict by electing the applicable marital regime.
Best practice is to regulate your marriage by both Muslim and civil rights
It is advisable that couples register their marriage under civil law. Phrased conversely, my advice is that you regulate your marriage by Muslim and civil rights, failing which your rights in respect of your children including but not confined to payment of maintenance and division of your assets, are at risk.
In order to ensure that your rights are adequately protected, contact our Family and Matrimonial Law team who have considerable expertise in advising and protecting Muslim men and women married under Islamic Law.
For legal advice about Family Law, Divorce and Matrimonial Law
Wesley Scheepers wesley@abgross.co.za
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Disclaimer
The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.