Women`s Legal Centre fights for full legal recognition of Muslim marriage 21. Nov. 2015 Business Day
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THE Women`s Legal Centre is forging ahead with its fight to force the government to recognise marriages solemnised in terms of Muslim rites.
The centre says it is taking the government to court for failing to pass legislation that will give recognition to Muslim marriages.
In December the Western Cape High Court will hear arguments from the state, the Women`s Legal Centre and interested parties on whether the failure to recognise Muslim marriages constitutes discrimination against women.
In 2014, then deputy president Kgalema Motlanthe said that the accreditation of more than 100 Imams as marriage officers will pave the way for the official recognition of the marriages of Muslim couples, allowing them to be recorded on the National Population Register and to receive the full legal status afforded by the Constitution.
But the Women`s Legal Centre says that Muslim clergy becoming marriage officers does not mean that Muslim nuptials are legally recognised.
Hoodah Abrahams-Fayker, an attorney at the Women`s Legal Centre, said that the Marriage Act provides for the marriage of one man to one woman.
This is contrary to Muslim Personal Law, which allows a man to have more than one wife. Civil marriages are monogamous and polygamous ones are invalid under civil law, Ms Abrahams-Fayker said.
"The legislation has not changed. In fact, the legal recognition of Muslim marriages has not yet taken place despite promises to do so since1994. Muslim clergy have always been able to register as marriage officers," said Ms Abrahams-Fayker.
She said when civil or customary marriages break down, the law steps in to ensure fairness between the spouses and to protect the rights of the children. This is not the case in respect of Muslim marriages.
"Once
| | customary marriages were given full legal recognition, the historical basis for not recognising polygamous marriages fell away.
The courts have already found the lack of inclusion of Muslim marriages to be discriminatory in respect of inheritance and spousal dependants` claims, but legislation is needed to recognise them for all purposes," Ms Abrahams-Fayker said.
The Women`s Legal Centre is relying on a range of constitutional rights, which it argues have been violated, including the right to equality. It will urge the court to order the state respondents to pass legislation that cures the unconstitutional position, or alternatively include Muslim marriages in the existing legislation that regulates civil and customary marriages.
The president, the minister of justice and correctional services, the minister of home affairs, the speaker of the national assembly and the chairperson of the National Council of Provinces have filed papers opposing the relief sought by the Women`s Legal Centre.
In his answering affidavit, Justice Minister Michael Masutha said the relief sought for the recognition of Muslim marriages is a complex and sensitive matter.
"I am advised that section 15 (of the Constitution) does not impose any obligation on the state to prepare, initiate and enact legislation for and in respect of any particular religious group of persons," the minister said.
Home Affairs Deputy Minister Fatima Chohan said in her affidavit that the consequence of the state adopting legislation to recognise Muslim marriages is that it must legislate in accordance with Shariah law, "whose principles are incongruent with the constitutional framework". V.1401 |
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