Women`s Legal Centre fights for full legal recognition of Muslim marriage

Source: Business Day, 21/11/2015

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".