SABC NEWS: South Africa’s judiciary has given the government 24 months to introduce legislation recognising Muslim marriages.
This case has been part of a law reform process that has been going on in the country for over ten years. The application was lodged by the Women’s Legal Centre in 2014, who argued that women and children have no legal protection following divorce or death.
The Department of Home Affairs says it is studying the judgment passed by a full bench of the High Court in Cape Town to recognise Muslim marriages.
The Home Affairs department spokesperson says they are studying the order.
“We have noted a judgment by the Western Cape High Court that ordered the state to introduce legislation to recognise Muslim marriages. We also note that the decision is subject to confirmation by the Constitutional Court”.
Understanding marriage in Islam
A lawful Islamic marriage is regarded as a legal contract between a man and a woman, who consent to the union of their own free will. The two must sign a formal, binding contract, which is considered integral to a religiously valid Islamic marriage.
The contract also outlines the rights and responsibilities of each partner and must be witnessed by two Muslim witnesses.
Polygamy is allowed in Islam and divorce takes many forms, some of which are initiated by the husband and some by the wife.
According to 2015 estimates, only 1.9 percent of the South African population practices Islam. Majority of Muslims in the Rainbow Nation are migrants from South Asia and North Africa.
How are South African Muslim marriages currently viewed by law?
Muslim unions which are celebrated in way of Islamic rites, are not recognized in law, unlike other marriages entered into under civil or African customary law. Couples married by Islamic or Muslim rites are therefore regarded as unmarried.
The existing customary marriage act, which was enacted in 2000, was designed to address this inequality but doesn’t recognize Muslim marriages.
Its wording specifically defines customary marriages as “customs and usages traditionally observed among the indigenous African peoples of South Africa, and which form part of the culture of those peoples”.
The Muslim Judicial Council has described the ruling as a milestone. MJC second Deputy president Shayk Riad Fataar says, “Something we’ve been waiting for, for a long. It’s an opportunity for President Cyril Ramaphosa to mark in history and recognise the Muslin community in their marriages.”
But they will have two years to wait for the drafting of the relevant legislation, and even longer if the President decides to appeal court ruling.