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MJC calls on constructive engagement with muslim community over Muslim Marriages legislation

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By Tauhierah Salie
The MJC SA has called for constructive engagement with the muslim community, following the recognition of Muslim marriages in South Africa.
The Women’s Legal Centre took the State to court in 2014, demanding that marriages under Sharia law, be recognized and granted legal relief in terms of divorce and property. Cited, was religious discrimination and deprivation of the rights of muslim women and their children. The Constitutional Court this week concurred, and declared parts of common law, as well as the Marriage and Divorce acts, unconstitutional.
Interim relief was provided until the State amends the existing legislation, or enacts new legislation, within 24 months. As stated by the Women’s Legal Centre, the relief is as follows:

(a) The Divorce Act may be used to dissolve a Muslim marriage that was in existence on 15 December 2014 or which may have been terminated in terms of Shari’a by 15 December 2014, in which legal proceedings have not been finally decided.

(b) This remedy however is only available in respect of marriages / terminations where legal proceedings were implemented by either of the parties and where such proceedings have not been finally determined.

(c) The Divorce Act shall guide such proceedings but the Court shall treat such marriages as if they are / were out of community of property.

(d) The Divorce Court must however ensure that the order in respect of the assets of the marriage is just and equitable between the parties

(e) Where a husband is a spouse in another marriage the court must take into account in contracts or agreements and ensure that the matter is determined in a just and equitable manner, and that any other party with a material interest in the proceedings can be joined.

(f) That the Children’s Act will apply in respect of the marriage of minor children to protect their interest

(g) Further that pending the enactment of legislation certain portions of the Recognition of Customary Marriages Act shall apply to Muslim marriages in order to give such marriages legal recognition.

Speaking to VOC Breakfast, the MJC’s Legal Desk Head, Dr Shk Muneer Abduroaf agreed while it is a step in the right direction,  community members and leaders have a responsibility to interpret and apply the ruling appropriately. He further called on the State to engage with the muslim community and Islamic Institutions before finalizing legislation.
He says however that the best-case scenario would in fact be a Muslim Marriages Bill:
“The judgement doesn’t specifically speak about the consequences being in terms of Islamic law. The recognition, without regulation of Islamic consequences of the marriage, could be problematic for the muslim community. The interim relief does however look at how a marriage can be dissolved and the redistribution of assets.”
Listen to the full audio here:

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