Muslim marriage recognition seen as duty of the state

PREVIOUS judgments by South Africa’s high courts, the Supreme Court of Appeal and the Constitutional Court have found the non-recognition of Muslim marriages is discriminatory and deeply injurious to those negatively affected.

Despite this, the state has procrastinated and ignored advice to legalise it.

These statements form part of the Women’s Legal Centre’s heads of argument, currently before the Western Cape High Court.

In its papers the WLC said: “These courts have recurrently made it clear that legislation is required to regulate Muslim marriages and their consequences in a manner that protects the rights of women, and called on Parliament to intervene.

“Yet, despite this repeated dicta that a legislative framework is required to afford recognition to or accommodate Muslim marriages and their consequences in a constitutionally acceptable manner, the State, as respondents, have procrastinated, ignored, sought to justify and more recently abdicated their duties in this regard.”

The WLCs legal representative, advocate Nazreen Bawa, said common law and the Marriage Act 25 of 1961 (“the Marriage Act”) continued to deny Muslim marriages legal recognition.

“A sizeable part of this (Muslim) community is women, and that’s why we are here,” Bawa said yesterday.

Though courts had removed some unconstitutional consequences against Muslim women on a piecemeal and limited basis, exclusion and marginalisation still existed.

“The ongoing piecemeal adjudication of the issues raised by the non-recognition of Muslim marriages is undesirable, both from the point of view of the parties to Muslim marriages and the children born of such marriages, as well as from the point of view of the administration of justice.

“With piecemeal litigation, the scope for judicial intervention is confined to the facts of each case and the limits of the court’s remedial powers,” the WLC argued.

The case is expected to be in court until next week.

Legal representatives, President Jacob Zuma, Parliament, the Department of Home Affairs and the Department of Justice and Correctional Services are also expected to argue their cases on the passing of the Muslim Marriages Bill.