Fight to make marriages bill law
‘Muslim women do not have the legal rights of those in civil marriages’
NEARLY a decade in the making, arguments to have the Muslim Marriages Bill made law were finally heard in the Western Cape High Court yesterday.
The Women’s Legal Centre (WLC) has brought President Jacob Zuma, Parliament, the departments of Home Affairs, Justice and Correctional Services to court to have Muslim marriages recognised with the passing of the bill.
The WLC is arguing 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.
They are fighting to extend benefits such as pensions, inheritance and maintenance for women entering religious marriages.
According to the centre, the non-recognition of Muslim marriages has far-reaching implications and consequences for women in such marriages, as they do not have the protections offered to women in civil marriages.
Religious and cultural tribunals, or religious decision-making bodies that aim to assist women, lack the enforcement powers to ensure rulings are implemented, they have said.
Some of these rights are whether a wife and her children can claim the marital home registered in her husband’s name upon divorce; and whether women may have access to pension benefits of her husband after divorce.
“It is common cause that in the 20 years since February 1996 when the constitution took effect, and in the 12-and-a-half years since July 2003 when the SALRC (South African Law Reform Commission) submitted to the then justice minister its report on Islamic Marriages and Related Matters – including a draft Muslim Marriages Bill – the State has not initiated, enacted and implemented an Act of Parliament to provide for the recognition of Muslim marriages for all purposes in South Africa and to regulate the consequences of such recognition…
“Though the courts have removed some of the unconstitutional consequences against Muslim women on a piecemeal and limited basis, the default position remains one of exclusion and marginalisation.
“As many of the aforementioned issues have not yet been the subject of litigation or specific legislation, the law currently affords only limited recognition of Muslim marriages and only limited protection to spouses in Muslim marriages and children born of such marriages,” the WLC arguments in the High Court read.
At the start of 2014, a pilot project by the Department of Home Affairs saw more than 100 Muslim clerics, or imams, graduate to be able to officiate over unions.
At present more than 200 Muslim clergy are registered as marriage officers in South Africa.
However, by not recognising Muslim marriages under common law, Muslim women are not afforded legal protection.
The case continues.