Abstract:
Muslim marriages are not recognised in South African civil law, as they are potentially polygamous. In the recent Western Cape High Court decision of Faro v Bingham the position of Muslim spouses in Islamic marriages and the consequences thereof again came to the fore. The non-recognition of Muslim marriages has resulted in hardships for Muslim spouses in areas of marriage, devolvement of marriage by divorce or death, maintenance rights and inheritance law. In comparing the South African law with Muslim personal law there are found to be fundamental differences between the two systems with regard to the rights granted to civil law spouses in marriage and divorce. Muslim spouses are often the innocent victims of the social and psychological effects of polygamy. While a secular court grants a civil divorce the Islamic law of divorce is practically administered by Islamic organisations such as the Muslim Judicial Council.
The draft Muslim Marriages Bill (2010) was published for commentary in January 2011. The Bill constitutes an attempt to reconcile the classical Islamic law with the constitutional values. Since its publication nothing has been done to speed up the process, due to constitutional and religious turmoil between women's rights activists and traditionalists. While it is uncertain if, and when, the bill will be accepted, the judiciary (secular courts) has increasingly recognised some of the legal consequences of Muslim marriages on a case-by-case basis. However, the Muslim marriage has not been formally accepted by the courts as a valid union in terms of the Marriage Act 25 of 1961.
In the Faro case an action was brought against the executrix of the deceased's estate by the surviving spouse to enable her to inherit intestate from the deceased and to claim maintenance from the deceased's estate. The pertinent question was whether she was still married to the deceased or if he had divorced her through presenting the talaq. The court was asked, inter alia, to regard marriages solemnised according to tenets of Islamic law to be valid marriages in terms of the Marriages Act. The position and role of the Muslim Judicial Council and the Master were questioned when dealing with factual disputes. The court granted her relief on her status as a widow, but postponed certain prayers giving the legislator another opportunity to promulgate legislation regarding Muslim marriages. The court set a deadline to the legislator to urgently report back on the enactment of the draft Muslim Marriages Bill.
