The controversial Muslim Marriages Bill has once again come into the spotlight with a number of parties involved in the legal process appealing (either in its entirety or on some aspects) a judgement handed down by the Cape High Court in 2018. The judgement essentially declared that government had – from the date of the ruling – 24 months to enact legislation which would see official recognition of Muslim Marriages. Several petitions were signed in opposition to the bill and public comment appeared to reflect that widespread opposition.
Aisha Hamdulay, media and communications liaison at the Women’s Legal Centre, says that they are unhappy with certain parts of the judgement and are appealing accordingly.
“One of the main things is that we asked the court that while legislation is being drafted…the women affected must be given interim relief and legal recognition – but that was not granted,” said Hamdulay.
“Something else we were unhappy with was that we asked the courts to compel the Minister of Justice to put in place regulatory measures and administration at the courts to recognise Muslim marriages in terms of estate, so that when it comes to issues of inheritance and rights for land and property and so forth, women don’t have to spend their money to go to court to ask to be legally recognised.”
“We [also] find that the court was incorrect in filing that there was widespread objection to the legislation and that there was a lack of consensus in the Muslim community…but that’s something we are also cross-appealing.”
Some of the issues that continue to impact upon Muslim women include:
-The right to be included as a spouse/s in terms of the Wills Act upon repudiation of benefits by the beneficiary
-Whether spouses in a Muslim marriage are entitled to a decree of divorce, transfer of assets, or to seek the forfeiture of the patrimonial benefits of the marriage in terms of the Divorce Act
-The challenges of enforcing maintenance orders during and after divorce
-Whether a wife and her children can claim the marital home registered in her husband’s name upon divorce
-Access to pension benefits of her husband on the dissolution of the marriage
Hamdulay says that several Muslim bodies partook in the legal process and that according to the state there seemed to have been a lack of consensus – even within the Muslim community.
“The state is saying that at the time that the Muslim Marriages Bill was drafted, there were many parties that were commenting on the bill and that were allowed to give input on the bill – and there, in that process, there was a lack of consensus…”
“But we have to understand that there are some grey areas and we also understand as Muslims that there are different schools of thought…There were a number of Muslim bodies that joined this process.”
Those opposing the recognition of Muslim marriages include the Society for the Protection of our Constitution, Lajnatun Nisaa-Il Muslimaat (Association of Muslim Women of SA), and the United Ulama Council of SA (a PE based ulema grouping falsely using UUCSAs name, despite a Pretoria High Court ruling stating that it does not have claims to the trademark).
Lawyers acting on behalf of these organisations argued that the WLC’s bid is “unconstitutional” as it undermines Islam and Shariah law. Their argument is centred around the Qur’an as the divine law, and their belief is that the Shariah will be subject to South Africa’s Constitutional laws.
The Muslim Judicial Council (MJC) however, supports the WLC, and believes the South African government’s piecemeal approach is not working.
Hamdulay could not relay any dates of further court appearances as none have yet been confirmed by the court.
“The legal process can take a very long time. We might only get a date later this year or next year – and that’s not appearing, it’s just receiving a date.”