State must introduce legislation to recognise Muslim marriages as valid, court rules

28th Sep 2018

Aqila Mumthaz

The Western Cape High Court in South Africa on October 31 ordered that the State was obliged to introduce legislation to recognise Muslim marriages as valid and needed to regulate the consequences of these unions.

The matter was heard by Judges Desai, Gayaat Salie-Hlophe and Nolwazi Boqwana.The Women’s Legal Centre brought the application for the recognition of Muslim marriages, who said their intention was to provide Muslim women and their children legal protection upon divorce.

They needed this due to the “continued failure on the part of Government to fulfil the obligations placed on it by the Constitution to recognise Muslim marriages as valid marriages for all purposes in SA, and to regulate the consequences of such recognition.”

The non-profit body claimed the need for judicial oversight over Muslim divorces, in both civil and customary instances, arguing that a range of constitutional rights, as well as the right to equality, were being violated.

The group hoped that the High Court would order the State respondents to pass legislation that “cures the unconstitutional position”, or to include Muslim marriages in existing legislation for civil and customary marriages.

The Commission for Gender EqualityCGE welcomed the order by the Western Cape High Court and said, “Our intervention was in support of the case as we firmly believe that Muslim women have suffered and continue to suffer serious prejudice in marriages as a result of the State’s inaction.”

Judge Siraj Desai said, “It is declared that the President and the Cabinet have failed to fulfil their respective constitutional obligations and such conduct is invalid,” and added “The President and Cabinet, together with Parliament, are directed to rectify the failure within 24 months of the date of this order as contemplated.”

The State respondents agreed that the verdict needed to be made by the Parliament, citing the separation of powers and judicial overreach.

Judge Desai said should the legislation not be enacted within the next two years, “it is declared that a union that is validly concluded as a marriage in terms of Sharia law which exists at the time the order becomes operative, may be dissolved in accordance with the Divorce Act and that all provisions of that Act would be applicable.”

The judge added that in the case of a polygamous marriage, the court should “take into consideration all relevant factors; including any contract or agreement and must make an equitable order that it deems just.”

The Departments of Home Affairs and Justice was also instructed to publish a summary of these orders in the media “without unreasonable delay”.

The CGE said they were encouraged by the court’s decision in compelling the Government to take steps to ensure that the rights of women in Muslim marriages. They said, “We celebrate this victory and hope that the State take steps to comply and make what the judgment envisages a reality for women in Muslim marriages.”
The President and the Ministers of Justice and Home Affairs were instructed to pay the costs of the Women’s Legal Centre Trust.

Attorney Charlene May from the Women’s Legal Centre said the ruling was an enormous victory for Muslim women in this country and added, “It has taken a very long time for us to get to this point where there are recognition and vindication of the rights of the women who have come forward over the last 10 years to demand recognition of their marriages…The court today recognised there has been a failure on the part of the State to come to the table to realise this.”

According to the Society for the Protection of Our ConstitutionSPOC, before delivery of the judgment, Muslim women acquired interim relief which enabled them to secure an order for interim maintenance and custody over their children. However, SPOC argued against the court’s order, claiming it was arbitrary, irrational and nonsensical.

They said the judgment had worsened the position of Muslim women. Stating that the Sharia law did not recognize the concept of marriage as a “union between two people”, but rather is a concept of nikah.

They retorted that the order shuts the doors to Muslim women from obtaining interim relief as the court may only dissolve a nikah that has already been terminated in terms of Sharia.

“The Divorce Act 70 of 1979 clothes the court exclusively to dissolve a marriage by a decree of divorce. There is no provision in the Divorce Act to dissolve a union without decreeing/ making an order of divorce. It is not competent by law for a court, acting under the Divorce Act to dissolve a nikah that has ended by talaq”, the society said in a statement.

The SPOC also had an issue with the time limit to put the order into practice; they claimed it could not be done in a “mere” 24 months “when the courts themselves could not do so in more than 10 years”. The statement further added it would also require the South African law to recognize the basics of Sharia law nikah, as the law remains undefined in South African law.

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