Currently, a marriage concluded in terms of the Islamic faith is not recognised as a legally valid marriage in South Africa. In our law, a marriage can be concluded in terms of the Marriages Act 25 of 1961 which is known as a civil marriage or in terms of the Civil Union Act 17 of 2006 known as a civil union.
Marriages concluded in terms of the Islamic faith do not meet the statutory requirements as imposed by these Acts. As a result of the fact that a marriage in terms of Islamic faith is not legally recognised, the consequences and dissolution of such a marriage is also not regulated by our South African law. The dissolution of Muslim marriages therefore remains problematic as one of the requirements for the dissolution of a marriage is that there must be a valid marriage prior to divorce proceedings being instituted. Accordingly, the dissolution of Muslim marriages is not regulated by the Divorce Act 70 of 1979.
There are, however, certain areas in South African law where spouses to a Muslim marriage have been afforded recognition and as a result thereof have been afforded certain benefits which would usually only be available to spouses of a legally recognised marriage. A surviving spouse as defined in the Law of Intestate Succession now includes a spouse in a Muslimmarriage and accordingly he or she can inherit a portion of the estate of the deceased spouse. The enforcement mechanisms of the Maintenance Act have also been extended to polygamous Muslim marriages.
Despite these exceptions, there is no enacted legislation which governs Muslim marriages. A draft Bill named the Muslim Marriages Bill was introduced in 2010, but this Bill has not been enacted. As a result of this, a recent decision in the Western Cape High Court has had a great impact on the recognition of Muslim marriages in South Africa. In this case, the Women’s Legal Centre brought an application in terms of which the President and Cabinet, together with Parliament have been ordered to enact legislation governing Muslim marriages within twenty-four months of the date of the judgment. Furthermore, it was decided by the court that should this not be realised by the legislature, the Divorce Act will then also apply to Muslim marriages when they are dissolved. This would mean that all the factors which are considered by courts to ensure equality and equity in divorce proceedings as well as the factors considered for the best interests of the children, when minor children are involved, will also apply to Muslim marriages.
From this court case it appears that our law is moving towards a position where there will in the near future be a full recognition of Muslim marriages and that the consequences and termination of such a marriage will be regulated similarly to those marriages which are currently legally recognised.
*Since publication of this article, Government has taken a decision to appeal the judgment.
