Abstract

Keywords

Muslim marriages; Women's Legal Centre; Islamic law.

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1 Introduction

On 28 June 2022 the apex or Constitutional Court (CC) handed down a much-awaited judgment which impacts upon Muslim marriages concluded in South Africa purely in terms of Islamic law. Does the judgment mean that such marriages are now recognised for all purposes in the South African legal context? The simple answer is "no". The rationale for this conclusion is to be found in the two-pronged judgment. The first part is wholly suspended and will only and automatically come into effect if remedial legislation is not enacted in 24 months. The second part pertains to an interim order which takes effect immediately and applies retrospectively to all Muslim marriages that subsisted on 15 December 2014 (when the case was first launched by the Women's Legal Centre in the Western Cape High Court)) and to Muslim marriages which, although terminated before that date, were still subject to ongoing legal proceedings at that date.

In the first part of the judgment the CC declared, inter alia, that the Marriage Act 25 of 1961 (Marriage Act) and the Divorce Act 70 of 1979 (Divorce Act) are unconstitutional insofar as they fail to recognise Muslim marriages as valid marriages for all purposes and fail to recognise the consequences that follow from such recognition.1 The Divorce Act also fails to safeguard the welfare of children born from Muslim marriages in the same or similar way as that in which children from other recognised marriages are safeguarded.2 The Divorce Act further fails to provide for the redistribution3 and forfeiture4 of assets on the dissolution of a Muslim marriage, where such redistribution and forfeiture would be just. The CC declared that the common law definition of marriage is inconsistent with the Constitution of the Republic of South Africa and invalid to the extent that it excludes Muslim marriages.5 The CC suspended the declarations of invalidity for a period of 24 months in order to give the South African government an opportunity to remedy the

defects by either enacting new legislation or amending existing legislation that would recognise Muslim marriages as valid marriages for all purposes and that would also regulate the consequences that arise from such recognition.6 In the second part of the judgment, the CC granted interim relief for parties in Muslim marriages during this period. The interim order also prescribes how a Muslim marriage should be concluded with regard to consent and age requirements. It further deals with the dissolution of a Muslim marriage, the rules applicable to the divorce of a monogamous Muslim marriage, and the rules applicable to the divorce of a polygynous Muslim marriage. Some of these issues are briefly examined and critically discussed in this case note by looking at three fictitious scenarios and the practical implications encountered. The case note ends with a few critical comments and concluding remarks.

It is noted that the anticipated CC interim order was needed due to the current status of the formal non-recognition of Muslim marriages in South Africa.7 Three scenarios are looked at in this case note. The first scenario looks at a situation where Ahmad (18 years old) wants to marry Layla (17 years old) in terms of Islamic law, subject to the interim order granted by the CC, and subject to the age and consent restrictions that came about as a result thereof. The second scenario looks at a situation where Adam is married to Amina in terms of Islamic law only (and the marriage subsisted on 15 December 2014) and one of the parties to the marriage wants to dissolve it in terms of the interim order granted in the CC judgment. The third scenario that is looked at is where Moosa and Bilquis were married to each other in terms of Islamic law only, prior to the CC judgment, and subsequently dissolved their marriage post the CC judgment.

2 Requirements for concluding a Muslim marriage in terms of the interim order (scenario 1)

The CC "declared that, from the date of this order [22 June 2022], section 12(2) of the Children's Act 38 of 2005 (Children's Act) applies to Muslim marriages concluded after the date of this order.”8 Section 12 of the Children's Act states: "(2) A child - (a) below the minimum age set by law

for a valid marriage may not be given out in marriage or engagement; and (b) above that minimum age may not be given out in marriage or engagement without his or her consent."9 It should be noted that this case note focusses on the requirements for concluding a marriage and that the consent issue pertaining to "engagement" (khitbah in Arabic) is beyond its scope. This Part looks at the situation of Ahmad and Layla in the first scenario with regard to age and consent requirements.

The CC declared with regard to age and consent requirements when concluding a Muslim marriage that "the provisions of sections 3(1)(a), 3(3)(a) and 3(3)(b), 3(4)(a) and 3(4)(b), and 3(5) of the Recognition of Customary Marriages Act 120 of 1998 [(Recognition Act)] shall apply, mutatis mutandis , to … [Muslim] marriages."10 Section 3(1) of the Recognition Act provides that "[f]or a customary marriage entered into after the commencement of this Act to be valid - (a) the prospective spouses - (i) must both be above the age of 18 years; and (ii) must both consent to be married to each other under customary law …"11 The CC judgment expressly refers to the phrase "mutatis mutandis".12 The section of the judgment could then be interpreted to mean that for a "Muslim marriage" entered into after the commencement of this Act to be valid, the prospective spouses must be above the age of 18 years and both parties must consent to be married under "Islamic law". It could be argued that the parties to the

marriage must consent to be married under customary law. This type of argument would be problematic as the couple would want to be married under Islamic law and not customary law. The words "customary marriage" and "customary law" are essentially changed to or replaced with "Muslim marriage" and "Islamic law". It should be noted that Islamic law does not necessarily require that each party to the Muslim marriage be 18 years of age.13 However, it is also interesting to note that some Muslim majority countries have legislated that parties to a Muslim marriage must be 18 years of age14 and that this age is also supported by the 2010 Muslim Marriages Bill (2010 MMB) (as detailed in footnote 7 above). A further discussion on this issue is beyond the scope of this case note. The issue of marriageable age is now further looked at in the South African context with regard to the Ahmad and Layla scenario (scenario 1).

Section 3(3) of the Recognition Act provides: "(a) If either of the prospective spouses is a minor, both his or her parents, or if he or she has no parents, his or her legal guardian, must consent to the marriage [parental consent]. (b) If the consent of the parent or legal guardian cannot be obtained, section 25 of the Marriage Act, 1961, applies."15 Section 25 of the Marriage Act authorises the Commissioner of Child Welfare or a judge of the High Court to consent to the marriage in certain circumstances where it is not possible for parental consent to be obtained.16 Ahmad is already 18 years old and would not require parental consent in order to marry Layla. However, Layla is 17 years old and does require parental consent in terms of section 3(3) of the Recognition Act.17 It will be assumed for the purposes of this discussion that Layla has obtained parental consent.

Section 3(4) of the Recognition Act provides that the Minister of Home Affairs must consent to a person under the age of 18 to enter into a customary marriage if certain conditions are met. The consent would also apply to Muslim marriages based on the mutatis mutandis principle as provided in the judgment.18 This would inter alia include parental consent in

the event that either of the parties to the Muslim marriage is under the age of 18. Based on this, Layla would require ministerial consent in order to conclude the Muslim marriage with Ahmad.

It is noted that Ahmad does not require ministerial consent as he is 18 years old. Layla, however, requires written ministerial consent in terms of section 3(4) of the Recognition Act.19 Section 3(4) of the Recognition Act requires that the Minister of Home Affairs or his or her duly authorised agent should give written consent prior to the conclusion of the Muslim marriage. There is a loophole available to Layla in this regard. If Layla marries Ahmad in terms of the Marriage Act, she would not require ministerial consent. Section 26 of the Marriage Act states: "(1) No boy under the age of eighteen years and no girl under the age of sixteen years shall be capable of contracting a valid marriage except with the written permission of the Minister … ."20 It can clearly be seen that ministerial consent for a female who is 17 years old is required in terms of the Recognition Act but is not required in terms of the Marriage Act.21 It will be assumed for the purposes of this scenario that Layla married Ahmad in terms of the Marriage Act and that the marriage was officiated by an Imam who is a registered civil Marriage Officer.22 One of the consequences of concluding the marriage in terms of the Marriage Act would be that Layla would now be regarded as a major for all purposes.23 The Muslim marriage can then be concluded in the light of the CC judgment.24 There would then be no breach of the CC judgment, which

requires both parties to be 18 years of age before concluding a Muslim marriage.25

The purpose of the above discussion has been to highlight the current loophole in law available to persons who are in the same situation as Layla. The scenario (as a whole) has highlighted some of the problematic aspects concerning the conclusion of a Muslim marriage after the CC judgment.

3 Dissolution of a Muslim marriage based on the interim order (scenario 2)

The CC held that:

[p]ending the coming into force of legislation or amendments to existing legislation … it is declared that [Muslim] marriages subsisting … [on] 15 December 2014, being the date when this action was instituted in the High Court, or which had been terminated in terms of Sharia law as at 15 December 2014, but in respect of which legal proceedings have been instituted and which proceedings have not been finally determined as at the date of this order [28 June 2022], may be dissolved in accordance with the Divorce Act …26 (our emphasis)

This Part of the case note looks at the section of the CC judgment in the light of a scenario where Adam and Amina married each other in terms of Islamic law only, and the marriage subsisted on 15 December 2014 (scenario 2). The CC judgment authorises Adam or Amina (as an interim measure) to dissolve their marriage in terms of the Divorce Act.27 It is not clear how this part of the judgment was intended to apply in practice and the major issue in this regard is the conflict of law. Two questions should be looked at in this regard. First, does the court have the jurisdiction to grant Amina a divorce that would dissolve the Muslim marriage? Second, if the

divorce is granted, is it a proper dissolution of the marriage in terms of Islamic law?

With regard to the first question (jurisdiction of the court to grant the divorce) it should be noted that section 5A of the Divorce Act states that if the court believes that, despite the granting of a divorce, either one or both of the parties to the divorce proceedings will not be free to remarry because of religious conventions unless the marriage is also dissolved in accordance with their religion's requirements or a barrier to the remarriage of either spouse is removed, the court may refuse to grant the divorce.28 This section of the Divorce Act distinguishes between a civil marriage and a religious marriage. It can therefore be confirmed that a court could generally dissolve a civil marriage in terms of the Divorce Act, whereas the religious marriage should be dissolved elsewhere. The CC judgment gives the impression, however, that a Muslim marriage (a religious marriage) may now be dissolved by a court based on the interim order and that the interim relief would then be applicable to that divorce.

The second question concerns whether a divorce granted by a court is a proper dissolution of the Islamic marriage in terms of Islamic law. It could be argued that the Muslim marriage would not be dissolved as a court would not generally have the jurisdiction in terms of Islamic law to dissolve a religious marriage.29 It is therefore recommended that parties in the position

of Adam and Amina should first dissolve their marriages in terms of Islamic law prior to seeking relief in terms of the CC judgment.30

4 Patrimonial consequences applicable to the Muslim marriage in terms of the interim order (scenario 3)

The third scenario looked at in this case note is where Moosa and Bilquis were married to each other only in terms of Islamic law on 30 June 2012 (marriage concluded approximately 10 years prior to the CC judgment) and they dissolved their marriage on 30 June 2022 (2 days after the CC judgment) (scenario 3). The CC states in its judgment that "[p]ending the coming into force of legislation or amendments to existing legislation … it is declared that Muslim marriages subsisting at 15 December 2014 … may be dissolved in accordance with the Divorce Act …"31 This issue (the dissolution of the marriage) was discussed in Part 3 of this case note. The CC further held that

(a) all the provisions of the Divorce Act shall be applicable, save that all Muslim marriages shall be treated as if they are out of community of property, except where there are agreements to the contrary [our emphasis], and (b) the provisions of section 7(3) of the Divorce Act shall apply to such a union regardless of when it was concluded.32

The judgment states that the marriages should be treated as out of community of property unless there is an agreement to the contrary. Section 2 of the Matrimonial Property Act 88 of 1984 (Matrimonial Property Act) states that "[e]very marriage out of community of property in terms of an antenuptial contract by which community of property and community of profit and loss are excluded, which is entered into after the commencement of this Act, is subject to the accrual system specified in this chapter, except in so far as that system is expressly excluded by the antenuptial contract."33

It is not clear as why the CC included the application of the accrual system.34 Was this maybe an oversight from the CC, and it did not intend for the accrual system to apply? It must be highlighted here that there could be a number of complications with regard to the retrospective application of the accrual system to marriages that were concluded in terms of Islamic law, especially based on the fact that the accrual system is foreign to Islamic law

and that the default position in terms of Islamic law is that the estates of each party to the marriage are kept separate.35

The judgment also refers to the application of section 7(3) of the Divorce Act. Section 7(3) of the Divorce Act states that a court granting a decree of divorce in respect of a marriage out of community of property may, subject to the provisions of subsections 7(4), 7(5) and 7(6),36 in the absence of any agreement between them regarding the division of their assets [our emphasis] order that the assets of one party be transferred to the other party.37 It is also not very clear as to how section 7(3) of the Divorce Act would apply in the instance where the accrual system is applicable, as it would normally apply in the instance where the accrual system was not applicable.

For the purposes of this scenario it will be assumed that the CC intended that the accrual system should apply and that Moosa and Bilquis each had R1 000 000 in their individual estates prior to their marriage concluded on 30 June 2012. During the marriage, which lasted for a period of 10 years, Moosa's estate grew by R1 000 000 (and is now R2 000 000) whereas Bilquis's estate remained at R1 000 000. Bilquis would be entitled to a share of Moosa's accrual based on the CC judgment that section 2 of the Matrimonial Property Act states that a marriage out of community of property is subject to the accrual system, unless this is expressly excluded by the antenuptial contract.38 It is recommended that a couple who decide

to enforce patrimonial rights based on this judgment should consult a qualified Islamic scholar prior to finalising the divorce matters to ensure their compliance with Islamic law.39

5 Conclusion

This case note has briefly looked at the judgment in Women's Legal Centre Trust v President of the Republic of South Africa (CC) with a focus on the interim order. It highlighted some of the problematic areas surrounding the application of the interim order. The findings show that there are several practical complications that could arise when giving effect to the judgment with regard to concluding Muslim marriages, effecting divorces, and dealing with assets subsequent to divorce. It is recommended that parties to a Muslim marriage who intend to dissolve their marriage in terms of the interim order handed down by the CC should seek expert advice from a qualified Islamic scholar prior to finalising their divorce proceedings, in order to ensure their compliance with Islamic law. Whilst the overall outcome of the judgment was generally welcomed because it provides interim relief, the CC case has not led to dramatically different results from the cases prior to it. It has not afforded automatic, immediate, or even blanket recognition to Muslim marriages. The Muslim marriage is recognised for certain sections of the Divorce Act only. Unless, for example, one also enters into a civil marriage in terms of the Marriage Act, a purely Islamic or Muslim marriage cannot be registered with the Department of Home Affairs in terms of the CC judgment. This also explains why a death certificate will, or may still, state: "never been married". Past experience leads us to expect that tangible progress will take place only by 2024, since that year also coincides with South Africa's next presidential election. Until then, the non-recognition of Muslim marriages will continue to prove burdensome to Muslim women and children.

Bibliography

Literature

Abduroaf 2020 De Rebus

Abduroaf M "Analysis of the Women's Legal Centre Trust Case" July 2020 De Rebus 33-34

Abduroaf Impact of South African Law

Abduroaf M The Impact of South African Law on the Islamic Law of Succession (LLD-thesis University of the Western Cape 2018)

Amien, Moosa and Rautenbach "Religious, Personal, and Family Law Systems"

Amien W, Moosa N and Rautenbach C "Religious, Personal, and Family Law Systems in South Africa" in Rautenbach C (ed) Introduction to Legal Pluralism in South Africa 6th ed (LexisNexis Durban 2021) 67-81

Moosa "South Africa"

Moosa N "South Africa: The Implications of Varying Statutory Minimum Age Thresholds for Child Consent in Respect of Minors Granted Majority Status Through Civil Marriage in South Africa" in Brinig M (ed) International Survey of Family Law (Intersentia Cambridge 2018) 493-525

Moosa 1999 De Rebus

Moosa N "Muslim Divorce and the 1996 Divorce Amendment Act: The Cart Before the Horse?" October 1999 De Rebus 33-37

Moosa and Abduroaf "Implications of the Official Designation of Muslim Clergy"

Moosa N and Abduroaf M "Implications of the Official Designation of Muslim Clergy as Authorised Civil Marriage Officers for Muslim Polygynous, Interfaith and Same-Sex Marriages in South Africa" in Brinig M and Banda F (eds) The International Survey of Family Law (LexisNexis Bristol 2017) 323-359

Moosa and Abduroaf 2022 Ahkam Jurnal Ilmu Syariah

Moosa N and Abduroaf M "The New Framework Planned for the Legal Recognition and Regulation of Muslim Marriages in a Secular South Africa: From Litigation to Law Reform" 2022 Ahkam Jurnal Ilmu Syariah 1-34

Case law

Women's Legal Centre Trust v President of the Republic of South Africa 2022 5 SA 323 (CC)

Legislation

Age of Majority Act 57 of 1972

Children's Act 38 of 2005

Child Law, 2008 (Egypt)

Constitution of the Republic of South Africa, 1996

Divorce Act 70 of 1979

Marriage Act 25 of 1961

Matrimonial Property Act 88 of 1984

Recognition of Customary Marriages Act 120 of 1998

Government publications

Draft Muslim Marriages Bill, 2010

Internet sources

Africa Child Policy Forum 2015 http://www.africanchildforum.org/clr/Harmo

nisation%20of%20Laws%20in%20Africa/other-documents-harmonisation_3_en.pdf

Africa Child Policy Forum 2015 Minimum Age of Marriage Under the Laws of African Countries http://www.africanchildforum.org/clr/Harmo nisation%20of%20Laws%20in%20Africa/other-documents-harmonisation_3_en.pdf accessed 18 August 2022

LexisNexis date unknown https://www.lexisnexis.co.uk/legal/ glossary/mutatis-mutandis#:~:text='Mutatis%20mutandis'%20translates%20to%20',main%20point%20remains%20the%20same

LexisNexis date unknown "Mutatis Mutandis Definition: What does Mutatis Mutandis Mean?" https://www.lexisnexis.co.uk/legal/glossary/mutatis-mutandis#:~:text='Mutatis%20mutandis'%20translates%20to%20',main%20point%20remains%20the%20same accessed 18 August 2022

Morocco World News 2019 https://www.moroccoworldnews.com/2020/01/

292105/2019-child-marriage-morocco-statistics

Morocco World News 2019 "Moroccan Courts Approved 25,920 Child Marriage Requests in 2019" https://www.moroccoworldnews.com/ 2020/01/292105/2019-child-marriage-morocco-statistics accessed 18 August 2022

Munajjid Shaykh Muhammad Saalih date unknown https://islamqa.info/en/answers/177280/ruling-on-setting-a-particular-age-for-marriage

Munajjid Shaykh Muhammad Saalih date unknown "Islam Question and Answer: Ruling on Setting a Particular Age for Marriage" https://islamqa.info/en/answers/177280/ruling-on-setting-a-particular-age-for-marriage accessed 18 August 2022

Muslim Judicial Council (SA) 2022 https://mjc.org.za/2022/07/07/mjc-sa-welcomes-the-constitutional-court-ruling-on-the-recognition-of-muslim-marriages/

Muslim Judicial Council (SA) 2022 MJC(SA) Welcomes the Constitutional Court Ruling on the Recognition of Muslim Marriages https://mjc.org.za/2022/07/07/mjc-sa-welcomes-the-constitutional-court-ruling-on-the-recognition-of-muslim-marriages/ accessed 2 September 2023

List of Abbreviations