Muslim marriage in spotlight

2009-11-02 00:00

THE failure of South Africa’s Divorce Act to give recognition to monogamous Muslim marriages and afford its protection to women married in terms of Islamic rites has come under the spotlight in the high court in Pietermaritzburg.

At the centre of the debate is a Pietermaritzburg Muslim mother, Ayesha Jacob, whose 14-year marriage under Islamic rites to her husband, Abdul Kader Amod Ayoob, has ended.

Jacob is being supported in her legal battle to assert her rights by the Women’s Legal Centre Trust (WLC) — a Cape-based organisation that aims to advance and protect the human rights of women and girls.

The WLC has been joined as an “amicus curiae” (friend of the court) in the case, which the organisation believes to be of interest to many other women who are similarly placed and find themselves without legal protection.

Jacob is asking the court to rule that the failure of the Divorce Act of 1979 to include parties to a monogamous Muslim marriage is unconstitutional and discriminatory.

Jacob is also seeking to win an order for maintenance for her and the couple’s three children and an equitable division of the joint estate.

She has asked the court to find that since she and her husband did not conclude an ante-nuptial contract, their marriage is one in community of property.

In papers before Judge Jerome Mnguni on Friday, WLC director Jennifer Williams said the trust submits that the Divorce Act should be interpreted to include a divorce action between the parties to a monogamous Muslim marriage; and that the failure to include Muslim marriages in the act will impact negatively on a “particularly vulnerable class of women” and violates a number of constitutional rights.

Williams says the WLC has over the years often been approached for legal advice about the impact of Muslim personal law on women and children.

Cases in which it has litigated on behalf of clients highlight the vulnerability of women married under Muslim personal law, and their children, when those marriages dissolve or following the death of a spouse, Williams added.

She said the present case raises matters of public interest affecting many women who were married under Muslim personal law.

The trial will get under way in the high court on May 10 next year.

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