This is an issue that many women in Muslim marriages face. According to the Islamic faith, marriage to more than one wife is permitted at the discretion of a judge (qadi), who must ensure that the husband is financially capable of supporting more than one wife and there is a legitimate interest.
The legal position in South Africa is that Muslim marriages are not recognised as valid on their own – they also need to be concluded according to the Marriage Act 25 of 1961.
The Muslim Marriages Bill was drafted in 2010 but has not yet come into operation. This Bill will regulate the current position relating to Islamic Marriages, including the status and capacity of spouses, the registration of a Muslim marriage and the termination of such marriage to name a few.
A reason for it not yet coming into operation may be due to provisions in Muslim family law which raise concerns regarding gender inequality in comparison to the gender equality rights afforded by our Constitution.
Whatever the reasons, the non-recognition of such marriages place Muslim women in a disadvantageous position in comparison to their counterparts in a customary union – polygamous customary marriages are recognised in South Africa but Islamic marriages in general are not – resulting in a group in society being disadvantaged because of their religion.
The courts have given recognition on occasion to spouses in Muslim marriages. One such case was where the court found that a surviving dependant spouse in a Muslim marriage was entitled to claim maintenance and to inherit intestate from the deceased spouse’s estate. This had the effect of recognising a husband or wife married in accordance with Muslim rites in a monogamous marriage as a “spouse” in terms of Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of 1990. In another case the Constitutional Court also confirmed that women who are party to a polygamous marriage are deemed to be spouses for purposes of inheriting from the intestate estate of their deceased husband.
The Western Cape High Court has recently set a further precedent for women who are in a polygamous Muslim marriage while their husbands are in a pre-existing civil marriage. Faiza Rose was unable to claim her share of the assets from her former husband because he was already married when he married her. The court ruled that Faiza can claim for maintenance and a share of her former husband’s pension. The effect of this judgment on our hypothetical scenario will be that Faheema will be able to claim maintenance and may be entitled to maintenance and other proprietary relief from Schuaib.
It is clear that the courts are moving towards affording Muslim women more rights within a marriage but have not yet tackled the entire issue of the validity of such marriages. Hopefully, the proposed Muslim Marriages Act will provide greater certainty on the recognition of such marriages.