Muslim marriages and the long walk to equality
1 July 2011

Author Nicki van‘t Riet

Great emphasis is placed on the right to equality in South African law because of years of suppression and gross violations of human rights under apartheid rule.The fact that this right is recorded in the Constitution's preamble is indicative of the sheer weight it carries.

Islam itself recognises equality specifically in so far as women's rights are concerned. The Qur'an states that “women shall have rights similar to the rights against them, according to what is equitable”! and “Fear Allah with respect to the treatment of your women.”

Despite this, and some 16 years after the Constitution came into force, legal recognition has still not been afforded to Muslim marriages which, in practice, has resulted in widespread oppression and gender discrimination in areas such as divorce, duties of support, parental rights and responsibilities, and inheritance. It is not uncommon for women to be left destitute and without legal recourse.

While the courts have historically been approached and piecemeal solutions provided, 3 it became apparent that an holistic solution is required. Since the Constitution4 makes provision for legislation recognising marriages concluded under any tradition, or a system of religious, personal or family law, the South African Law Commission was instructed in 1999 to investigate the issues surrounding Islamic Marriage and related matters. The Commission's Project Committee (which comprised almost entirely respected members of the Muslim community) was instructed to investigate avenues for ensuring compliance of Islamic belief with the Constitution. It was also tasked with drafting a new statute giving recognition to both new marriages and existing marriages and to deal with issues pertaining to new marriages such as the age of consent, the designation of marriage officers, registration, solemnisation and prohibition of marriages.

Enter the Muslim Marriages Bill which, despite a comprehensive four-year public consultation process set to have ended on May 31 2011, now finds itself at the centre of a heated debate between various sectors within the Muslim community. The main source of contention is whether the drafters' interpretation of Sharia (Islamic Law) embodied in the Bill is, in fact, compliant with Shariah. This is because there are at least four different schools of thought that are followed, each with different day-to-day practices.

Islam is a way of life and daily practice permeates everything the community does. It is difficult for one Bill to regulate properly Muslim marriage practices since these diverge from group to group, with each group having their own interpretation. For example, rules relating to the need for witnesses in concluding the marriage or divorce vary in terms of who is qualified and whether they are needed at all. Also, the calculation and time period for payment of the dowry varies. Members of the community are split as to whether or not to engage parliament on a redrafting of the Bill to be more generally acceptable or to renounce the Bill in its entirety.

The debate continues to rage about the provisions contained in the Bill and its compliance with religious law. Since the different practices are so deeply entrenched, there will never be a meeting of minds between members of the different schools of thought should the state impose detailed regulations showing preference for one practice over another. There is, nevertheless, still an overwhelming need to protect and enforce women's rights. Promulgation of a detailed and technical Act may not be the way forward.

We propose, therefore, that the Bill be reformulated by removing finer points on practices which cannot be agreed upon and replacing it with general framework legislation concretising women's rights so that they are in keeping with the Constitution. Recognition of Muslim marriages as a general, overarching principle in order to address the inequities and hardships arising from non-recognition should be the goal as opposed to over regulation of a system that is impossible to reconcile.

If the state does not elect to amend the Bill so that it is broader and accordingly more acceptable, s2(1) and (2) of the Bill is a provision that may go some way in resolving the tension by allowing couples jointly to elect to Surah 11 verse 228 2 Surah IV verse 32 3 An example of this piecemeal approach is Amod & Another v Multilateral Motor Vehicle Vehicle opt in or out of the Bill. This allows for couples married before the promulgation date to opt out of the provisions within 36 months. Couples who marry after the Act's inception can choose to submit to the provisions of the Bill by registration in the prescribed manner. The effect of opting out of the protection of the Bill would no doubt have the effect of secular courts being reluctant to interfere in issues of Muslim family law.

From our point of view, while the opt in and opt out clause may have its benefits, there are certain difficulties, for instance, opting out may not be a choice that vulnerable women have the power to make.

The issues surrounding the Muslim Marriages Bill are extremely complex and it is little wonder that 12 years have passed from inception of the idea without promulgation. The attempt to align Sharjah law with the Constitution is noble in theory but by virtue of its very nature may be irreconcilable should it be over-legislated. Should the legislature elect to promulgate the Bill in its current form, Shariah law may be codified in a manner inconsistent with certain practices. While this is most certainly an undesirable outcome, legislation is required to address the inequalities and unfair discrimination faced by Muslim women, preferably with content painted with much broader strokes.

By: Nicki Van't Riet and Anessa Bodiat, a candidate attorney