Revisions to legal marital status
When one of the spouses dies in an Islamic marriage concluded by a ceremony called a “Nikah”, the death certificate issued by the Department of Home Affairs gives the marital status as “never married”.
So the last official document the departed gets from the government harms the human dignity of the spouse and harms the dignity of the other spouse and the children. Women in a Nikah-only marriage often suffer untold harm at the death of their husband or when the marriage breaks down, as a Nikah marriage has no legal consequences in South African Law.
Many other religious marriages in South Africa suffer a similar fate, such as Hindu religious marriages and in some cases even Jewish religious marriages.
The quest for legal consequences for Muslim marriages began in earnest soon after the adoption of the constitution, which provided such rights and reasonable accommodation of the marriage systems of the different religions in South Africa.
It is the opinion of the Al Jama-ah political party that the attempts by Muslim religious leaders, scholars and organisations should have been handled differently as they tried to codify Islamic marriage laws into a Muslim Marriages Bill.
This bill has been rejected by the government after a public participation process because of wide dissent on most of the clauses.
The late minister of justice Dullah Omar and the late Chief Justice Ismail Mohamed, both Muslims, advised against codification.
Omar felt that there should be a religious marriage bill giving recognition to all religious marriages and their marriage laws.
Having a dedicated marriage bill for every religion was going to be too cumbersome for the government.
The former chief justice made a recommendation to the government after he chaired a Law Commission committee to deal with legal consequences for Muslim marriages that the only way forward was to have a “bench” of senior Muslim sheikhs (quadis) to deal with recognition of Muslim marriages and the consequences relating to maintenance, custody and access, the proprietory consequences of marriage and divorce and the termination of marriages under the Islamic religious system.
When these disputes come before court they should be dealt with by members of this bench.
After engaging with three members of the ANC “Big Six” and other ANC members of Parliament Al Jama-ah now has a clear vision for a bill that will give the best opportunity for the recognition of all religious marriages in South Africa.
This would be a great breakthough for Muslims. The government wants a “bare bones” bill and is happy to look at proposals. The more clauses in especially a religious bill opens it to dissenting opinions, which is better avoided.
South Africans in religious marriages which are not recognised in terms of South African law often resort to getting married in terms of the mainstream Marriages Act.
For Muslims this amounts to ignoring their religious marriage laws. A provision in the Marriages Act regards marrying a second wife as bigamy while their religious law allows it.
It is the opinion of Al Jama-ah that getting married in terms of two legal regimes, especially if there are wide opposing clauses, is disrespectful to the Islamic religion. For the party this is a matter of faith.
One should not get married in terms of Islamic laws of marriage,then revoke it by getting married in terms of an opposing system of marriage law. Marriage officers are bound by the Marriages Act and its provisions.
The elders of the Muslim Judicial Council have rejected such certification but many of its members have ignored this prohibition and got certification after attending a course on the Marriages Act. Marrying a Muslim in terms of another legal regime is harmful to the strict code Islam demands and punishable according to Islamic Laws.
The priority for Al Jama-ah is to get recognition for a Nikah marriage so that when a spouse dies the death certificate will give the marital status as “married".
The harm to human dignity which is the case now will be put to rest. It has taken into account all of the above and has settled a bill that can now go to Parliament called the Recognition of Religious Marriages Bill. The Muslim Judicial Council and the Women's Legal Centre have requested copies of the bill and they will be the first to get them. The party has invited them and 500 other Muslim bodies all over the country to request briefings on the bill.
It has also launched the bill on the steps of the shrine of the Founder of Islam in South Africa, Sheikh Yusuf, who is buried in Faure, Maccassar. Muslim leaders visit the shrine when they engage in important matters affecting the Muslim community and most Capetonians visit the shrine when they go on a pilgrimage to Mecca, a milestone for any Muslim.
The main clauses in the bill state:
“All religious marriages concluded under the prescripts of any religion are given full force and are recognised in South African law”; and “Consequences of religious marriages are also recognised as they relate to maintenance, custody and access, proprietory consequences of a marriage and divorce and the law governing the termination of marriages under the religious system.”
The bill seeks an amendment to Section 2(a) of the Arbitration Act of 1965 to enable the resolution of marital disputes and disputes arising out of the consequences of religious marriages to be resolved by arbitration, avoiding litigation in the higher courts as arbitration determinations are final.
The bill provides for a Mediation Council and an Arbitration Council to have a “Bench” as envisaged by Justice Mohamed. The Bench will sit on a panel that will mediate and arbitrate.
Al Jama-ah is confident that the Muslim community and its leaders will embrace the bill, the first the party has prepared in its nine years as a registered political party.