OPINION by Waheeda Amien

To date, religious marriages including Muslim marriages, Hindu marriages and Jewish marriages in South Africa have not been afforded legal recognition. On 30 May 2018, the Muslim Judicial Council (MJC) in Cape Town hosted President Cyril Ramaphosa at a community iftar (Muslim breaking of the fast). On this occasion, the President indicated the government’s commitment to ensuring that Muslim marriages are afforded recognition. When the audience was provided an opportunity to comment, I indicated to the President that the state’s initiative to draft legislation to recognize all religious marriages is a step in the right direction, and that the composition of an Advisory Committee tasked with drafting such legislation needs to be inclusive and ensure that experts in the different religious marriage laws are represented on such a committee.

There is a broader context within which the above suggestion was made to the President, which I would like to elaborate upon. In 2003, a Muslim Marriages Bill (MMB) was presented to the Ministry of Justice and Constitutional Development for the recognition of Muslim marriages in South Africa. The 2003 MMB was a product of extensive consultations with the South African Muslim community and received general consensus within that community for its enactment.

At about the same time, the Commission on Gender Equality in consultation with the Department of Justice and Constitutional Development drafted a Recognition of Religious Marriages Bill (RRMB), which purported to afford recognition to all religious marriages. The drafting of the RRMB did not undergo a rigorous consultation process with religious communities and was rejected by those communities, including the Muslim community.

In 2010, the MMB underwent some changes at the instance of the Department of Justice and Constitutional Development. Due to the changes effected in the 2010 MMB, sections of the Muslim community who had supported the 2003 MMB appeared to withdraw their support for the 2010 MMB. However, at the aforementioned iftar, the speaker for the MJC indicated that the MJC now supports the current version of the MMB.

This may be an indication that the Muslim community is finally ready to have the MMB enacted. Recently, legal action was instituted by the Women’s Legal Centre (WLC) requesting our courts to order government to enact legislation to recognize Muslim marriages, which was opposed by the state (at the expense of tax payers). The reason for the state’s opposition is unclear especially in light of the President’s commitment to ensure recognition of Muslim marriages in South Africa.

As mentioned previously, the South African Law Reform Commission (SALRC) recently appointed an Advisory Committee to draft legislation (presently referred to as the Single Marriage Bill) with the aim of ensuring recognition for all marriages in South Africa. Minority religious marriages including Muslim marriages have been marginalized in this country and women in minority religious communities have mostly been detrimentally affected by the non-recognition of their religious marriages. It is therefore important for all religious marriages to be afforded recognition in this country. However, the mode of recognition will determine the extent to which their rights are protected or undermined.

I have previously argued that a single piece of legislation that purports to recognize all religious marriages without regulating the nuances and features of the different religious marriages can potentially undermine women’s rights, especially in the context of Muslim marriages. I am still of that opinion. It is the reason that when I analysed the contents of the Recognition of Religious Marriages Bill (RRMB), I concluded that the RRMB will not be able to provide sufficient protection for women in religious marriages, particularly Muslim marriages. In fact, I argued (and continue to do so) that the RRMB will provide less protection than the MMB for the rights of women in Muslim marriages.

My statement that the state’s initiative to draft legislation to recognize all religious marriages is a step in the right direction was not to indicate support for the Single Marriage Bill. It would be premature for me to do so given that the legislation has not yet been drafted and I have not had sight of the contents of the draft legislation.

Whether or not I support such legislation will depend on how it is drafted. Rather, my statement was to indicate appreciation for the need for recognition of all religious marriages in South Africa. However, if the Single Marriage Bill is drafted in a manner that does not address the nuances and features of the different religious marriages in South Africa including Muslim marriages, then like the RRMB, it will result in a negation of women’s rights. In order for such legislation to be attentive to the specificities of religious marriages in a gender sensitive manner, the drafters of the legislation will have to be experts in the different religious marriage laws who are also committed to the achievement of gender equality in marriage and the drafting process will have to involve extensive consultations with the different religious communities whose marriages will be affected by the legislation.

It was therefore surprising for me to see that the composition of the Advisory Committee tasked with drafting the Single Marriage Bill are either experts in civil family law and/or African customary law. The members of the Advisory Committee, although respected scholars in their areas of expertise, do not appear to be specialists in religious marriage laws. The aim of my very short address to the President was thus to request that if the state is intent on proceeding with the enactment of a single piece of legislation to recognize all marriages, the Advisory Committee should include experts of the different religious marriage laws in South Africa and that those experts should be committed to ensuring gender equality in all marriages.

My research over the last 18 years indicates that gender sensitive recognition of Muslim marriages can only be effected through legislation that purports to not only recognize Muslim marriages but also seeks to regulate the features of a Muslim marriage. This can occur either through separate legislation that focuses specifically on Muslim marriages like the MMB or through the enactment of a single piece of legislation that recognizes and regulates the features of each religious marriage in as gender-sensitive a manner as possible.

Since the MMB proposes to regulate Muslim marriages in a comprehensive manner and was drafted over a protracted period of time at great expense to tax payers, it would not make sense for government to shelve it in favour of starting afresh by drafting new legislation that will also cover the recognition of Muslim marriages. To draft the latter legislation properly (in the sense of incorporating the different features of the different religious marriages in a gender nuanced manner) will take several more years and will involve additional significant costs to the tax payer. It would be unfair to expect the South African Muslim community especially Muslim women to wait any longer for recognition of their marriages, particularly since the MMB is ready and waiting to be enacted.

Government should therefore consider enacting the MMB as soon as possible and proceed to draft separate legislation for the recognition of the remaining minority religious marriages. The latter could either be addressed through the process that has been initiated for the enactment of a Single Marriage Bill (keeping in mind that the legislation would still have to regulate those marriages and not simply afford recognition) or recognize and regulate each minority religious marriage through separate legislation for each religious marriage. In either case, religious communities and civil society will have to be consulted throughout the drafting process.

Waheeda Amien is an Associate Professor in the Faculty of Law, University of Cape Town. She writes in her personal capacity.