OPINION by Waheeda Amien – The debate relating to the recognition and regulation of Muslim marriages in South Africa raises many complex issues, some of which I wish to address in this article.

The first, and it appears the most contested issue, is whether or not a secular state should be regulating a religious family law system that has for centuries been regulated within the private domain by members adhering to that religion.

Those adopting the position that the state should not be interfering in the private matters of a religious community echo the laïcité approach of the northern and western hemispheres.

Ironically, it is precisely the laïcité approach that is being used today to discriminate against Muslim women in many European countries. A similar approach was previously used to advocate against state intervention in domestic violence because the latter was perceived to fall within the private sphere of the family and not within the domain of the state.

Yet, whenever members of a community or society suffer negative consequences as a result of discriminatory practices and beliefs, the state has an obligation to intervene and provide protection to those marginalised members. In the case of Muslim family law in South Africa, those marginalised members are Muslim women.

The understanding of secularism in our democratic and constitutional dispensation is as far from the notion of laïcité as one can get. In light of South Africa’s history of discrimination on the basis of, among others, race, gender and religion, we adopt an approach that is tolerant toward-, accommodating of-, and in fact celebratory of religion. Moreover, our Constitution enables our government to enact legislation to regulate religious personal law systems or religious marriages.

The above-mentioned constitutional clause was included, among others, to accommodate the request by the South African Muslim community to have their personal law system or religious marriages recognised. Now that the government has acted on that request, dissidents within the Muslim community are rejecting the Muslim Marriages Bill (“the Bill”). Their main claim is that the Bill is not compliant with Islamic law, which is not strictly accurate since the Bill is formulated within an Islamic law paradigm.

Notably, the freedom of religion clause in the Constitution includes a proviso that any legislation purporting to regulate religious personal law systems or religious marriages, cannot conflict with other provisions in our Bill of Rights including gender equality. Inclusion of this proviso appears to have been a pre-emptive measure on government’s part to prevent the regulation of religious beliefs and practices that discriminate against women. It is therefore this internal limitation on the right to freedom of religion that alarmists within the Muslim community fear. The potential application of this limitation threatens their patriarchal power base within the community and places them at risk of having their actions held accountable to an external authority. These are the real reasons for their opposition to the Bill. This is why they argue for legislation that will merely recognise Muslim marriages while allowing the Muslim community to regulate those marriages themselves.

What those opposing the Muslim Marriages Bill fail to mention is that, for centuries, Muslim marriages in South Africa have been regulated by the ‘ulama and it is precisely because of their manner of regulation that women’s rights advocates are now calling for state intervention.

Those members of the ‘ulama who try to regulate the marriages in a way that protects women’s rights encounter the stumbling block of non-recognition that renders their decisions unenforceable.

Therefore, men who do not wish to honour their Islamic law obligations or who do not recognise the Islamic law rights of women, can seemingly not be held accountable.

Non-recognition of Muslim marriages has also caused Muslim women to suffer other hardships. For instance, they cannot access all the secular benefits that their civil law counterparts can access; they usually bear the brunt of discriminatory interpretations and decisions rendered against them by the ‘ulama; and they cannot challenge those decisions of the ‘ulama in secular courts.

Consequently, many men shirk their Islamic law obligations and deny to women their Islamic law rights. For example, men often abuse their right to talaq their wives by arbitrarily repudiating them, sometimes in the absence of women and without their knowledge.

The triple talaq mechanism is rife in South Africa and is condoned by the ‘ulama despite the fact that it is strongly frowned upon within the Sunni tradition, which is followed by most South African Muslims.

Secondly, although a Muslim marriage is a contract, parties (especially women) are not encouraged to enter into a written contract and to negotiate favourable terms for their marriage. Many rights that are available to women under Islamic law are therefore left by the wayside such as tafwid al-talaq, which is an agreement between the spouses that the husband delegates his right of talaq to his wife.

This results in a situation where many women are unaware of their Islamic law rights and even when they are aware, they seldom have the negotiating power to assert them.

Thirdly, women are in many instances unable to access their Islamic law right to divorce. For example, they are seldom granted faskh even when they have grounds for it under Islamic law. Faskh is an application to a third party (judge or ulama) for divorce on grounds recognised by Islamic law. Many Muslim women are also unaware of their right to khul’a, which is another form of divorce available to women.

In a country such as Egypt, khul’a is interpreted as the wife’s right to divorce her husband without requiring his consent or having to show any grounds to exit the marriage. She need only pay him financial compensation such as returning her mahr (dower) to be released from the marriage. Yet, many members of the South African ‘ulama adopt a conservative interpretation of khul’a, which requires the husband’s consent. In fact, one could argue that they confuse khul’a with mubara’a. The latter is a mutual agreement between the spouses to be divorced from each other. The South African ulama’s interpretation of khul’a is an example of selective application of interpretations of Islamic law. Many members of the ‘ulama usually adopt interpretations that favour men.

Interpretations of Islamic law that favour women are conveniently ignored. For instance, to provide a balance to the default position that the estates of spouses are kept separate during marriage, Islamic law enables the spouses to be compensated for their contributions to the maintenance or increase of the other’s estate.

Yet, in practice where women contribute to the maintenance or increase of their husband’s estates and even where they are the sole breadwinners, the ‘ulama does not insist that they should be compensated when the marriages end in divorce. Many also do not insist that men should maintain their wives and children as required by Islamic law.

A fourth example of the manner in which men do not honour their Islamic law obligations is manifest in the way that they practise polygyny. Many men enter polygynous marriages without complying with the Qur’anic prescription that they must treat their wives justly. Sometimes, these marriages are entered into secretly without the wives knowing about each other’s existence. This happens because the ‘ulama does not always keep proper records of the marriages and when they are aware that a man is contracting a polygynous marriage, they do not hold him accountable to the Qur’anic prescript for justice.

The Muslim Marriages Bill attempts to address the above inequities and others, which are generated by current Muslim family law related practices within the South African Muslim community.

The Bill proposes to provide relief to women that they are currently unable to access through the ‘ulama or the secular courts. At the same time, the Bill does not guarantee absolute gender equality between women and men.

For instance, it does not afford equal rights to women in divorce, it recognises the unilateral obligation of the husband to maintain his wife etc. Despite the fact that the Bill maintains a patriarchal relationship between women and men that is the result of conservative interpretations of Islamic law, it is the only option that South African Muslims have that promises to afford more protection to women than they currently have and that will provide an opportunity for women to access benefits and rights under secular law and Islamic law.

This is why many women’s rights advocates support the enactment of the Bill. Those provisions that threaten gender equality can be challenged in court after the Bill is enacted. Similarly, those who argue that the Bill is not compliant with Islamic law can invoke their right to freedom of religion and challenge the Bill on that basis after its enactment.

Failure to enact the Bill will mean forsaking the rights of women in favour of maintaining a patriarchal system that exists without any accountability. Enactment of the Bill will at least bring that system into the public sphere where it can be held accountable. Rand Daily Mail