Wives and chil­dren stand to lose

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CADEMIC and mem­ber of the na­tional Mus­lim Women’s Network, Farhana Is­mail, be­lieves the con­tin­ued non-reg­u­la­tion of Mus­lim mar­riages in South Africa has ex­posed women and chil­dren to abuse and in­jus­tice.

Is­mail, 45, of Gaut­eng, is also a com­mu­nity ac­tivist, who fo­cuses on gen­der equal­ity and youth de­vel­op­ment.

She is cur­rently con­tin­u­ing her stud­ies in the Is­lamic ju­rispru­dence re­lated to mar­riage and di­vorce.

“Mus­lim mar­riages have cre­ated dif­fi­cul­ties in di­vorces, child main­te­nance and cus­tody, spousal main­te­nance, is­sues around as­sets and pen­sions and in­her­i­tance. It has se­verely dis­ad­van­taged wives and particularly chil­dren of polyg­y­nous unions,” said Is­mail.

The mother of four said re­cent case law had shown that some Mus­lim women have ac­cessed the South African courts for re­lief, re­sult­ing in piece­meal ad­ju­di­ca­tion of these is­sues.

“Many have asked the courts to recog­nise their mar­riages ei­ther as uni­ver­sal part­ner­ships or to recog­nise them as spouses in terms of the Mar­riages Act, so they can re­ceive ben­e­fits like ac­cess to and shar­ing of as­sets and pen­sions, child main­te­nance and spousal main­te­nance.”

Is­mail said this piece­meal ad­ju­di­ca­tion was un­de­sir­able as not all women and chil­dren could af­ford the time or ex­pense in­curred.

Also be­cause the court is con­fined to the facts on a case by case ba­sis and to its own re­me­dial pow­ers, she said.

“In the ab­sence of clear laws, which au­to­mat­i­cally pro­vide pro­tec­tions, the ma­jor­ity of women and chil­dren, who can­not af­ford to go this route, are left des­ti­tute.

“There­fore, the lived ex­pe­ri­ences of South African Mus­lim women in abu­sive mar­riages and in sit­u­a­tions of di­vorce has prompted ac­tivists and schol­ars of Is­lamic mar­riage and di­vorce law, like my­self, to back the Women’s Le­gal Cen­tre ap­pli­ca­tion.”

Is­mail said the na­ture of a Mus­lim mar­riage was that it was not only a sacra­ment, but rather a con­tract.

“A weighty and solemn con­tract as de­scribed by the Qur’an. This means that both par­ties can and should ne­go­ti­ate and agree on the terms prior to the nikah (Is­lamic mar­riage).

“In fact, there is noth­ing stop­ping a Mus­lim cou­ple from get­ting mar­ried un­der the Mar­riages Act and also draw­ing up an ANC (an­tenup­tial con­tract) with clauses spe­cific to Mus­lim mar­riage,” she ex­plained.

Is­mail added that the dif­fer­ent le­gal schools of Is­lamic ju­rispru­dence (fiqh law) al­lowed for a plethora of mar­riage terms that could be in­cluded within such a con­tract, not­with­stand­ing a wife’s right to hold a mech­a­nism for dis­so­lu­tion of the nikah – an un­con­di­tional del­e­gated talaq (tafwid) – and thereby re­move her­self from the mar­riage if she saw fit.

“In fact the terms al­lowed by the vast cor­pus of Is­lamic ju­rispru­dence al­lows for just con­se­quences at the point of dis­so­lu­tion. The Mus­lim per­sonal law codes in Morocco and Tu­nisia are good ex­am­ples where polygamy is ad­e­quately man­aged and spousal main­te­nance is taken se­ri­ously.”

She said South African Mus­lims are not a ho­moge­nous group and many have dif­fer­ent views and ap­proaches to mar­riage as a con­tract ex­ists.

“In fact, the most com­mon view shared by the ma­jor Ulama bod­ies tends to con­strain the ex­pan­sive fiqh mech­a­nisms, which al­lows for more egal­i­tar­ian mar­riages and in­stead tend to em­body the ar­gu­ments and ex­pe­ri­ences of a nar­row sec­tor of ju­rists, who pre­scribe to mar­riages of in­equal­ity, with the re­sult that many women have been se­verely dis­ad­van­taged.”

She said even in in­stances when some re­li­gious au­thor­ity fig­ures ruled in favour of a just out­come for women, there was no le­gal mech­a­nism that forced hus­bands to com­ply with such rul­ings.

“The South African courts have a re­spon­si­bil­ity to af­ford Mus­lim women and chil­dren pro­tec­tions in terms of the Bill of Rights. For this rea­son, and speak­ing as a mem­ber of the women’s only body, the Mus­lim Per­sonal Law Network, we are of the opin­ion that the Women’s Le­gal Cen­tre ap­pli­ca­tion is a pos­i­tive way for­ward.”

She said in or­der to mit­i­gate against the re­li­gious law chal­lenges posed by the recog­ni­tion and reg­u­la­tion of Mus­lim mar­riages, a pos­si­ble so­lu­tion might be amend­ments to be made to the Mar­riages Act and the Di­vorce Act to cater not just for Mus­lim mar­riages, but for all re­li­gious mar­riages.

Teacher and women’s ac­tivist Fa­tima No­or­dien, 52, was for­tu­nate enough to have grown up with lib­eral par­ents, who worked in the com­mu­nity to help Mus­lim women.

“Due to my par­ents I had some in­sight into what my rights were as a woman and used to get an­gry when I saw Mus­lim men abus­ing their power and see­ing their wives get­ting the short end of the stick.”

The Cape Town mother of two mar­ried in 1988 in a tra­di­tional Mus­lim cer­e­mony but made sure an an­tenup­tial con­tract was drawn up.

“My hus­band and I di­vorced and be­cause of this con­tract I was not left des­ti­tute like many of the women I have helped. I support the WLC be­cause apart from fight­ing for the rights of Mus­lim women, they are also ed­u­cat­ing them on what is right and wrong.”

No­or­dien said for too long Mus­lim women have been treated un­fairly and now was the time for change.

Mus­lim women gath­ered out­side the Western Cape High Court to support the ap­pli­ca­tion for Mus­lim mar­riages to be recog­nised by gov­ern­ment.

Farhana Is­mail

Fa­tima No­or­dien

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