Muslim marriages not legally recognised by South African law

In terms of the Marriage Act 25 of 1961, Muslim marriages are not recognised as having the same legal status as civil marriages.

Over the years, the legal status of Muslim marriages in South Africa has been questioned, unlike marriages entered into under civil or African customary law.

As a result, many Muslim spouses and their children face stigma due to their traditional marriages and the view that their children are illegitimate. In addition, Muslim women are often left with no access to property, money, or resources in the event of divorce.

Talking about the legal status of Muslim marriages, CapeTalk/702’s Redi Tlhabi spoke to Hoodah Abrahams-Fayker, Attorney at Women’s Legal Centre.

We have the Marriage Act 25 of 1961 which governs marriages in South Africa and it specifies that there should be marriages between one man and one woman. And in terms of Islamic law a husband is allowed to take more than one wife. Historical, this was in contrary to public policy to recognise Muslim marriages. However, through our democracy and the recognition of customary marriages which allows for the legal recognition of a husband having more than one wife, there was an urgent need to address the recognition of having Muslim Marriages

Hoodah Abrahams-Fayker - Attorney, Women’s Legal Centre

Efforts to acknowledge Muslim marriages aren't moving fast enough

According to Abrahams-Fayker , the progression to get Muslim marriages recognised started at the hype of South Africa’s democracy in 1996 but the process is very slow. There were initially positive moves towards Muslim marriages but the Muslim Marriages Bill is still not been signed into law.

The Women’s Legal Centre Trust (WLCT) later took President Jacob Zuma, Parliament and two government departments to court to have the Muslim Marriages Bill made law within a year.

When asked about the current outcomes of the latter, Abrahams-Fayker says that the matter was initially taken to the Constitutional Court, were they were redirected to the High Court. Even through litigation from the Justice Department, Abrahams-Fayker says there were no further steps taken by government to make Muslim marriages legal. This, in turn, delayed the referral of the matter to the High Court, she says.

The grievances of Muslim women about the legality of their marriages pushed the Women’s Legal Centre to launch an application to have Muslim marriages legally recognised in December 2014, and the matter will be heard in the Western Cape High Court in December 2015.

Here are some of the comments on Twitter:

@Madlala_TM we are a constitutional democracy - so the spirit and the letter of our laws must be respected and obeyed! @RediTlhabi @bmtcool

— 🤪🤪🤪 Maggs Naidu (@maggsnaidu) June 24, 2015

@TheSecretSarah @RediTlhabi but my friend went to their Imam and he granted her a divorce. Maybe it depends how the Imam interprets the law.

— DasCoachingPowerhouse 🇩🇪🇿🇦 (@Time2Coach) June 24, 2015

@RediTlhabi Discussing a topic like this is educational and clears up misconceptions about issues especially about Muslim marriages.

— ⚡️𝔽𝕒𝕚𝕫𝕖𝕝 ℙ𝕒𝕥𝕖𝕝 🇿🇦 (@FaizelPatel143) June 24, 2015

@RediTlhabi Men have created religious laws that favour the men & place women at the hand of their charity #Moslem #marriage inequality

— Ms Debs (@debbieflorence) June 24, 2015

Listen to the full conversation on The Redi Tlhabi Show:

This article first appeared on 702 : Muslim marriages not legally recognised by South African law