Marriages concluded according to Muslim rites or Islamic rights are to date not legally recognised in South Africa. In the case of Ismail v Ismail 1983(1) SA 1006 (A) it was held that marriages solemnised under Islamic Law do not enjoy the same status of marriages in civil law because these unions are potentially polygamous and therefore against public policy.
The South African Law Reform Commission (SALRC) has constantly been examining the status of Muslim marriages and in addition to that, a draft Muslim Marriages Bill was also published in 2000. The Bill proclaims to comprehensively recognise and regulate Muslim marriages but despite all that has been done there has been no change to statutory law as it stands.
However, on 15 December 2014 the Women’s Legal Centre Trust (WLCT) brought an Application in the Western Cape High Court. The Application was brought by Muslim women who were married in terms of Shariah Law complained that they had been discriminated against because they had no legal protection.
In the said case, The Women’s Legal Centre Trust v President of the Republic of South Africa and others (CCT 24/21) [2022] ZACC 23; 2022 (5) SA 323 (CC); 2023 (1) BCLR 80 (CC), the Constitutional Court declared that the Marriage Act 25 of 1961 and certain provisions of the Divorce Act 70 of 1979 were inconsistent with sections 9, 10, 28 and 34 of the Constitution insofar that they fail to recognise marriages solemnised in accordance with Shariah Law (Muslim Marriages) as being valid for all purposes in South Africa. The Constitutional Court suspended the declaration of invalidity for 24 months to enable the legislature to remedy defects by either amending existing legislation or initiating new legislation by 27 June 2024. The new amended legislation must recognise Muslim Marriages for all purposes in South Africa and to regulate the consequences arising from such recognition. The Law Commission of South Africa is in the process of drafting this new legislation.
According to the Court the Common Law definition of Marriage was also declared to be inconsistent with the constitution and invalid because it excluded Muslim marriages. The Common law definition of marriage now included Muslim Marriages.
The Constitutional Court Judgement applies to all Muslim marriages entered after 15 December 2014. All marriages subsisting as at 15 December 2014 or which had been terminated in terms of Shariah Law as at 15 December 2014 but not yet finalised on date of this order may be dissolved in accordance with the Divorce Act. Muslim Marriages have been brought on par and in line with other civil marriages but they will be treated as Out of Community of Property unless the parties agreed otherwise.
SHARIAH LAW
The South African Constitutional Law recognises marriages under Shariah law. According to Shariah law Muslim marriages are out of community of property and each spouse has independent legal and contractual capacity before and after the marriage.
To make a marriage Shariah compliant parties marry by way of Nikah and are also required to register an Ante-Nuptial Contract, out of community of property without the application of the accrual system.
By registering a marriage in terms of the Marriage Act 25 of 1961, spouses can obtain recognition and regulate the proprietary consequences of their marriage.
A marriage by way of Nikah only without registering the marriage in terms of SA Law will not be recognised.
GAINING CIVIL RECOGNITION FOR MUSLIM MARRIAGES
In April 2014 over 100 Imams were officially appointed as marriage officers in terms of the Marriage Act and as at 1 May 2014 an Imam who has been registered as a marriage officer in terms of the Marriage act, may solemnise a Muslim marriage and the proprietary consequences will be the same as that of a civil marriage in terms of the Marriage Act.
The parties to a marriage solemnised before an Imam registered as a marriage officer will therefore be regarded as being married in community of property. Should they have registered an antenuptial contract with or without the accrual, they will be regarded as being married out of community of property.
Note however that not all marriages are regarded as valid. It is only the marriages that were solemnised before a registered Imam. The parties to all other marriages will be regarded as unmarried.
FOR CONVEYANCING PURPOSES
a) To determine the status of a Muslim Marriage one will request the following:
- A Marriage Certificate
- An Ante-nuptial contract (“ANC”).
b) Should the spouses produce the aforementioned documents the consequences this has on property ownership will be the same as with other civil marriages. The parties can be cited on the conveyancing documents as “Married out of Community of Property”.
c) Muslim Marriages concluded before 15 December 2014 will be regarded as unmarried, and the parties should be cited accordingly.
d) Those marriages solemnised before an Imam registered as a Marriage officer and who have not registered an ANC will be regarded as “Married in community of Property”.
e) Those marriages solemnised before an Imam registered as a Marriage officer and who have registered an ANC will be regarded as “Married out of Community of Property”.
Authored by Ms Shaaeerah Ellemdeen, Attorney, Notary Public and Conveyancer, Associate in the Conveyancing Department, with Ms Boney Cronje providing oversight.