Children's rights came into focus in the Western Cape High Court yesterday as arguments to have Muslim marriages recognised under common law continued.
Advocate Michelle O’Sullivan for the Women’s Legal Centre (WLC) yesterday argued that because Muslim marriages were not recognised, when couples divorced there was no automatic court oversight for the wellbeing of minors.
This included issues like where children would live, and orders on maintenance money.
O’Sullivan said it was the societal norm that when people divorced it was usually the mother who took responsibility for the child or children. That in turn usually placed a financial burden on them.
Unlike marriages recognised under common law which had a “one-stop” to approach following a divorce, Muslim women were not afforded the same. Divorcees of Christian faith, as an example, could go to court and have all her childrens legal needs be taken care of.
The centre is arguing that the consequence of having no legislative protections for persons married according to religious rites was caused by a delay in reform.
Over the past 20 years, The WLC has made the government aware that the lack of legal recognition of Muslim
marriages has resulted in Muslim women being treated unfairly upon the dissolution of marriage.
A process was started in 1996 by the government to recognise Muslim marriages but came to a halt in 2012 after the Muslim Marriages Bill was published for comment.
The WLC launched an application in the Western Cape High Court in the public interest seeking relief aimed at providing women in Muslim marriages, and the children born of such marriages, with legal protections, primarily upon divorce.
“At the end of the day there is a huge imbalance at the lack of oversight. Concluding things on a piecemeal basis is not remedying the discrimination which is at the heart of this case,” O’Sullivan argued.
The WLC argued that by not recognising Muslim marriages under common law, Muslim women are not afforded legal protection and do not have access to the courts to assert their rights.
The inaccessibility to the courts means that those married as per Muslim law (Shari’ah law) must obtain divorces under Shari’ah law instead of through the court system, WLC argues, and as a result, Muslim women have often found it hard to obtain divorces.
President Jacob Zuma, Parliament, the departments of Home Affairs, Justice and Correctional Services each have representations in the case.
The case continues.