Muslim marriages – In 2005, when the Constitutional Court ruled that same-sex marriages should have the same rights, responsibilities and legal consequences as any other civil marriage or union, customary marriages also gained full recognition. Muslim and Hindu marriages, unfortunately, did not as they are not governed by civil law.
This situation is set to change following a judgement by the Western Cape High Court in the Women’s Legal Centre Trust v President of the Republic of South Africa & Others. The State was found to have failed its constitutional duties to recognise, respect and protect the rights of women in Muslim marriages, and the Court ruled that legislation recognising Muslim marriages and providing Muslim women and their children with legal protection in the event of a divorce must be introduced within 24 months. If this deadline is not met, these marriages could ‘be dissolved in accordance with the Divorce Act 70 of 1979’.
The current state of affairs
The contentious Muslim Marriages Bill, published in 2000, has not yet been passed and there is much dispute about removing provisions such as the need for theologically trained judges or Muslim assessors. The legislation could also be deemed optional and this will, no doubt, raise a multitude of problems. In the meantime, couples who marry under Islamic law will only be protected under South African law if they also register a civil marriage.
Greater protection, recognition and rights in Muslim marriages
Several cases over the last few years have, however, greatly advanced the protection, recognition and rights of Muslim marriages. We highlight just a few below.
Interestingly, most cases of this nature have been brought by Muslim women, although the judgements extend to Hindu marriages as well.
Rights of a spouse to succession
A spouse in either a monogamous or polygamous Muslim religious marriage is now also able to inherit from the intestate estate of a deceased spouse and claim maintenance from the estate (Hassam v Jacobs NO and Others 2009). Prior to this, legislation only granted rights to spouses in monogamous marriages. This was found to be inconsistent with the spirit of the Wills Act and deemed invalid.
In the case of Khan v Kahn 2005 , the Court ruled that a couple married under Sharia law have a duty of support towards each other and are entitled to claim maintenance under the Maintenance Act 99 of 1998.
The rights of children
Although Muslim and Hindu marriages are not legally recognised, children born of a Muslim or Hindu marriage are not considered illegitimate, and the father automatically acquires parental rights and responsibilities. Despite this, children born to Muslim marriages currently do not have the same protection as those born in civil or customary marriages, particularly in the event of divorce.
A share in property
Muslim marriages are regarded as being out of community of property, excluding the accrual system. This contrasts with civil unions where community of property is the default marital regime. Where both parties have contributed assets to the marriage, ownership lies in the hands of the individual and do not form part of a single estate.
As far as immovable property is concerned, if a couple get divorced, the wife is not automatically entitled to claim a share of property registered in her husband’s name. It is therefore prudent to register property 50-50 in the names of both spouses.
Women remain vulnerable
The Women’s Legal Centre Trust judgement is a significant win for women, who are still among the most vulnerable in society. The underlying message of the judgement is evident: we need clear and comprehensive legislation that protects and upholds the rights of women in Muslim marriages.
Equality is not only a fundamental right, it is a central part of our Constitution. We look forward to the new legislation.
We can help
SD Law & Associates are experts in divorce and family law. If you need advice about legislation on Muslim or Hindu religious marriages or divorce, we can help. Contact us or call 087 550 2740 or email firstname.lastname@example.org