Wives and children stand to lose
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.