Judgment for state to recognise Muslim marriages welcomed

Cape High court judge Siraj Desai. Picture Ayanda Ndamane African News Agency ANA

The Muslim Judicial Council welcomed the decision of the Western Cape High Court in granting relief in the form of providing Muslim women and their children legal protection upon the dissolution of marriages.

The judgment was handed down by Judge Siraj Desai on Friday August 31 and declares that the president of the country and other respondents have failed in their constitutional obligation to have legislation enacted that governs Muslim marriages and its consequences within the South African context. Judge Desai ordered government to enact legislation within 24 months.

Currently religious marriages, such as Muslim marriages, have no legislative framework governing them and these religious marriages are not legally recognised as marriages. The consequence of this is that there are no legislative protections for persons married according to religious rites, which includes Muslim rites.

The delay in reform has prompted the Women Legal Centre and others to litigate on these matters to extend benefits such as pensions, inheritance and maintenance to religious marriages.

In 2016, the Women’s Legal Centre took government to court for failing to pass legislation that will give recognition to Muslim marriages despite a process having been on the cards since 1996 when the law reform process began. It said in addition to a draft Muslim Marriages Bill completed in 2003 by the South African Law Reform Commission and published for public comment in 2011, there has since been no clear indication of when the legislation will be passed.

The centre therefore launched an application in the Western Cape High Court in the public interest seeking relief aimed at providing women in Muslim marriages, and the children born of such marriages, with legal protections, primarily upon the dissolution of such marriages.

“This is a milestone for Muslims as a minority in South Africa,” said MJC second deputy president, Shaykh Riad Fataar.

“The significance of this judgment is that the president of the country has now been tasked to enforce the legislation. We would like to remind the president that he can make his mark in history by recognising the Muslim community in their marriages – which is long overdue,” he said.

The MJC, one of the founding members of the United Ulema Council of South Africa, said it lends its full support and resources for the implementation of the Muslim Marriages Bill.

“We await government to fulfill their constitutional obligation and facilitate the process to enact the legislation as soon as possible as per the court order,” Shaykh Fataar said.

The non-recognition of Muslim marriages has far-reaching implications and consequences for women in Muslim marriages as they do not have the protections offered to women in civil marriages.

Religious and cultural tribunals or religious decision-making bodies that aim to assist women lack the enforcement powers to ensure rulings are implemented.

The Women’s Legal Centre said some of the issues that continue to impact upon Muslim women include:

The right to be included as 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 challenge 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 dissolution of the marriage.