Until now, Muslim marriages abided by Shariah |(Islamic) law.
Until now, Muslim marriages abided by Shariah |(Islamic) law.

Recognition for Muslim marriage

By Rizwana Sheik Umar Time of article published Apr 26, 2011

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More than 5 000 submissions have been received by Department of Justice and Constitutional Development on the Muslim Marriages Bill that will recognise traditional Islamic marriages for the first time under South African law.

About 14 years in the making, the bill is open for public comment.

Until now, Muslim marriages abided by Shariah (Islamic) law.

The bill seeks to afford the rights and freedom of the constitution, which are not all afforded in Shariah law.

Once enacted in its current form, the law would allow Muslim men to take a second wife – but only with the approval of a court.

However, the United Ulama Council of South Africa (UUCSA), an umbrella body of Muslim theological formations in the country – of which Jamiatul Ulama South Africa is a founding member – has an alternate proposal by which a person contemplating a second marriage would not have to ask the court for approval, but rather be obliged to provide the marriage officer with a court-approved contract spelling out the ownership status of property of each spouse.

One of the bill’s key characteristics is its affording of basic rights for women not afforded them at all by Shariah law.

Previously, a woman married according to Muslim rites was not acknowledged as a surviving spouse under South African law. Under the law she was regarded as never having been married, could not benefit from her spouse’s estate and her children were regarded as illegitimate.

“The bill needs to be a solution for the many hardships currently faced by Muslims with regard to Muslim marriages,” said Munirah Osman-Hyder, a lecturer in the law faculty at the University of KwaZulu-Natal.

“The bill aims to address these hardships by providing a legal framework for the recognition and regulation of Muslim marriages.”

Osman-Hyder said although there were people who had accepted the bill, subject to certain amendments, the group making the biggest noise against it were the “ultra-conservative” Islamic bodies, whose stance was one of total rejection.

“This group has not raised any cogent reason why the bill should be rejected. Their modus operandi is one of using religious rhetoric and whipping up the emotions of the Muslim community rather than appealing to their logic,” she said.

Osman-Hyder said there were also women’s rights or feminist groups who believed that women would not achieve equality under the bill and that they had more rights under the secular laws of the country.

In a meeting held by the Jamiatul Ulama South Africa last month, Moulana Yusuf Patel, secretary-general of UUCSA, said the bill in its present form fell short of expectation.

Local Muslims would be losing a window of opportunity if they did not engage the government to adjust the bill so as to comply with Shariah, he said.

Patel said that in the absence of the bill, the various cases of Muslim marriages brought before the courts would continue to be ruled according to civil marriage laws.

The danger in that, he said, was that precedents set in the rulings would, by default, become the law that would govern Islamic marriages, compromising Shariah in matters such as dissolution of marriages, custody, maintenance and inheritance.

Dr Faisal Ismail Suliman, the chairman of the South African Muslim Network, said the view of the majority of Muslims was that the bill needed to be amended to be more Shariah compliant.

“If amended properly and coupled with training programmes, it is a workable bill, but it is not acceptable as it stands,” said Suliman. “We want the problem of legitimisation and prejudices experienced by women removed.”

Because of the huge response and reaction to the bill, the Department of Justice and Constitutional Development has extended the closing dates for submission of comments to May 31.

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