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Cape Town - The legality of Muslim marriages is back in the spotlight, after the Western Cape High Court gave the Justice Minister a less than nine-month deadline to report on the progress made with the Muslim Marriages Bill.
The decision on Friday was immediately welcomed by the Women’s Legal Centre (WLC), which described it as “a step forward in having Muslim marriages legally recognised”.
Women had been bringing these cases to the courts for 12 years, the centre said.
“It is, more often than not, women and children who suffer due to the state’s failure to pass the law,” said centre director Jennifer Williams.
Judge Owen Rogers made the order in a judgment handed down on Friday in a case the centre took to court on behalf of Tarryn Faro, who married the late Moosa Ely in accordance with Muslim rites in March 2008.
In 2009 Ely was granted a talaq, which dissolves a marriage in terms of sharia (Islamic law), after the couple had an argument.
Faro was pregnant, and the couple reunited. The predominant view in Islam is that a talaq can be revoked by the resumption of sexual relations.
Ely died without a will on March 4, 2010. On April 21 that year Faro was appointed executrix of his deceased estate.
However, she was not aware of the fact that, weeks before her appointment, Ely’s daughter from his previous marriage, Naziema Bardien, who considered herself to have an interest in her father’s estate, obtained a certificate from the Muslim Judicial Council (MJC) declaring that the marriage had been annulled.
Faro encountered great difficulty in proving that she and Ely were married at the time of his death.
In October 2010 Faro and her two minor children were left destitute after Ely’s children forcefully removed her from the house she had shared with Ely, throwing out her belongings.
Faro ended up living in shelters or on the street, and her children were taken into care.
She took her case to the High Court in March this year.
In his judgment, Judge Rogers said strong evidence was provided by Hamiedah Ganiem, chief executive director of NGO Azaad Youth Services, who advised Faro that the talaq was invalidated when she and Ely resumed marital relations.
Ganiem said she also spoke to Ely about the resumption of their intimacy.
Judge Rogers concluded that Faro was entitled to be recognised as a spouse for the purposes of the Intestate Succession Act, and as a survivor for purposes of the Maintenance of Surviving Spouses Act.
He postponed to next August Faro’s application to have the court declare that Muslim marriages be recognised as valid in terms of the Marriage Act.
He commented that, while the topic of the Bill was a sensitive one, “the nettle will need to be grasped sooner or later”.
Judge Rogers gave the minister until July 15 to file an affidavit setting out the progress made with the Bill.