The legal status of (Nikah) Muslim marriages in South Africa is amongst the most frequently queried legal issues, which unfortunately still attracts the most divergent responses.
A brief overview. Prior to the advent of democracy, (Nikah) Muslim marriages, together with Hindu and other Traditional marriage, were not recognized as having the same legal status as civil marriages in terms of the Marriage Act 25 of 1961. Numerous reasons were finished for non-recognition, and no constructive engagement regarding the issue was entertained. An example of the then status quo, is the 1983 ruling in Ismail vs. Ismail 1983 (1) SA1006 (A). The appellant sought the proprietary consequences flowing from the termination of a marriage solemnised according to Islamic rites (Nikah), the court refused to grant rights to polygymous unions on the grounds of public policy saying that “the union was contrary to the accepted norms that are morally binding on our society”. The birth of our Constitution brought about acceptance, understanding and respect for every culture and religion. The Bill of Rights, considered the cornerstone of democracy, under Section 15, in Chapter 2, states that freedom of religion “does not prevent laws recognising marriages concluded under any tradition, or system of religious, personal or family law, or system of personal and family law under any tradition or religion,” provided that they are consistent with the Constitution. Among the first decisions reflecting the new constitutional values was the case of Amod v Multilateral Motor Vehicle Accidents Fund 1999(4) SA1319 (SCA1). The plaintiff brought an action against the insurer of a driver who had negligently killed her husband. She and her husband had been married according to Muslim rites in a de facto monogamous marriage, which had not been registered in terms of the Marriage Act 25 of 1961. The Supreme Court of Appeal found that since the marriage had been a de facto monogamous marriage and undertaken according to the customs of a major religion through a very public ceremony, the appellant’s marriage, in the spirit of plurality, equality, and freedom of the new Constitution, could not continue to be found to be offensive to the bonos mores of society. During the late 90’s as democracy gained momentum, a progressive move toward formal recognition of these marriages began. The Recognition of Customary Marriages Act The Recognition of Customary Marriages Act, was enacted in the last quarter of 2000. Many Muslim individuals and couples incorrectly believed that this legislation would result in the recognition of (Nikah) Muslim marriages. The customary marriages act affords recognition to a customary marriage concluded in terms of customary law. The act defines customary law as, “the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples”. The definition clearly does not include or apply to marriages concluded by (Nikah) Muslim rights. The customary marriages act thus does not afford recognition to (NIKAH) Muslim marriages. Build up to the Muslim Marriage’s Bill A Project Committee of the South African Law Reform Commission was established to investigate Islamic Marriages and matters related thereto. This investigation ultimately led to drafting of the Muslim Marriages Bill. Again many a Muslim mistakenly believed that Muslim marriages had attained recognition, after the deadline for public comment on the Muslim Marriages Bill had passed at the end of May, 2011. The Muslim marriages bill, can only evolve into an ACT, or LAW, once it is enacted by parliament and allocated a commencement date. Since the Muslim marriages bill has not been enacted and allocated a commencement date, it does not at present, amend the status of (Nikah) Muslim marriages in South Africa. Delay in Enactment and Finalisation of the Muslim Marriage’s Bill During the period that comment on the Muslim marriage’s bill was received, it became clear the two camps were emerging with divergent views and opinions regarding the recognition and regulation of Muslim marriages in South Africa. The one school of thought motivate the view that the bill is unconstitutional and unislamic, in that it allows for state interference and regulation of sacred (Sharia) Islamic law. This group is also adamant that a non-Muslim jurist cannot preside over and rule on (sharia) Islamic law disputes. Conversely the so called “liberal camp”, motivate the view that some form of regulation is better than none. They argue that progression and development of legal precedent around regulation of Muslim marriage, will be expedited if South African courts are allowed to decide on these matters and develop the law on a case-by-case basis. This deadlock, coupled with further delays by all involved leaves the bill in somewhat of a void. There is presently no certainty or indication of when and how common ground will be attained. Efforts by the Women’s Legal Centre Trust in relation to enactment of legislation to regulate and recognise (Nikah) Muslim marriages. The Women’s Legal Centre Trust, in Cape Town, has always been at the forefront in assisting women affected by the consequences of non-recognition of Muslim marriages. At the beginning of 2009 The Women’s Legal Centre Trust made an application directly to the Constitutional Court, requesting the court to compel the President and Parliament to pass legislation recognizing (Nikah) Muslim Marriages and regulating the consequences of such marriages within eighteen (18) months. The constitutional court first addressed the question of jurisdiction, i.e. whether the court could be approached directly in this matter, as a court of first instance. The Constitutional Court ultimately found that this application should follow the litigious hierarchy and be referred to the High Court, as court of first instance. The Women’s Legal Centre Trust is due to launch this application in the Western Cape High Court, and we eagerly await the outcome. Is it wise to hold your breath in anticipation of the Muslim marriages bill being enacted? Considering all the difficulties and uncertainty around the bill as well as divergent opinions, it would be best to consider registration of your marriage in terms of the marriage act (25) of 1961 South African legislation is also by default not of retrospective application, and unless specified, an act will not apply to marriages before the commencement date. Registration of (Imaam’s / Ulama) Muslim Clerics as Marriage Officers In April 2014 In 2014, the South African Department of Home Affairs launched a project to train (IMAAM / ULAMA) Muslim clerics to be designated marriage officers. Over 100 (IMAAM’S /ULAMA) Muslim clerics, from around the country, graduated as marriage officers at the end of April 2014, allowing them to officiate and register Muslim unions. Articles around this designation, have caused the most confusion with misleading titles such as “As from 30 April 2014 Muslim marriages in South Africa are officially recognised.” and “Muslim Marriage legal as a result of the Imams being designated as Marriage Officers in terms of the Marriages Act (25) of 1961.” The factual situation is that not every (IMAAM/ALIM) Muslim cleric is a marriage officer. In order to be designated a marriage officer a (IMAAM/ALIM) Muslim cleric must successfully complete a mandatory training course and examination. Upon completion the (IMAAM/ALIM) Muslim cleric must be designated a marriage officer, as required in Section 4 of the Marriages act (25) of 1961. This (IMAAM/ALIM) Muslim cleric is thus not a marriage office by virtue of his Islamic knowledge, training, or affiliation, but as a result of having successfully completed the requisite training and examination, in terms of the Marriages act (25) of 1961. The role of the (IMAAM/ ALIM) Muslim cleric, as marriage officer would then be to solemnise the marriage in terms of the Marriage Act of 1961 after the (Nikah) Islamic marriage ceremony. The marriage officer must thereafter register the marriage formally with the Department of Home Affairs. This registration is not a substitute for the (Nikah) Islamic marriage ceremony, nor does it have any bearing on its validity. The designation of certain (IMAAM / ULAMA) Muslim clerics as marriage offices, does not afford recognition to (Nikah) Muslim marriage, but merely facilitates ease of registration, via (IMAAM/ ALIM) Muslim cleric, designated as marriage officer. The proprietary consequences of such registered marriages will also be in terms of South African law and not (Sharia) Islamic law. Does South Africa recognise (Nikah) Muslim marriage? The short and concise answer is, NO. However, by registering a marriage in terms of the marriages act 25 of 1961, spouses can obtain recognition and regulate the proprietary consequences of their marriage. What are the potential dangers of not registering a marriage according to South African law? If a spouse passes away and the marriage was not registered, the estate will be dealt with as that of an unmarried person, to the detriment of the surviving spouse. Without a registered marriage, one may experience difficulty registering offspring under the father’s surname. In such an instance, birth certificates would be issued for a child on the mother’s surname. Visa applications to visit certain countries, specify that marriage certificates should accompany applications. Should the parties separate, enforcement of maintenance obligations, custody and access, arising from an Islamic marriage, could prove problematic. What should a Muslim couple that contemplate (Nikah) Muslim marriage do? Any couple that intend to marry by (Nikah) Islamic ceremony, should first consult an attorney to discuss the matrimonial property systems in South Africa and consider which will best suit their needs. An attorney must draft the necessary documentation before the marriage is registered in terms of the marriages act 25 of 1961. It is imperative that necessary documentation and contracts are finalised and attested to before registration in terms of the marriages act 25 of 1961. What about spouses that are already married by (Nikah) Muslim ceremony? A couple married by (Nikah) Islamic ceremony that have not registered the marriage in terms of the marriages act 25 of 1961, should likewise contact an attorney to discuss the matrimonial property systems in South Africa and consider which will best suit their needs. A marriage that is not registered in terms of the marriages act 25 of 1961, can be registered at any stage after the (Nikah) Islamic ceremony, irrespective of when the (Nikah) Islamic ceremony was performed. What if a Muslim couple’s marriage has been registered in terms of the Marriages Act 25 of 1961, without an antenuptial contract? South African law does make provision for registration of post nuptial contracts subject to certain requirements and court application. A Muslim couple that wants to change their matrimonial proprietary system must contact as attorney.