Islamic marriages legal soon?

2003-07-22 21:42

Pretoria - South Africans married under Islamic law came one step closer on Tuesday to having their unions legalised, with the release of proposed draft legislation to this effect.

"I am very happy that at long last we are almost at a point where we can give full legal recognition to marriages concluded under Islamic law and tradition," Justice Minister Penuell Maduna said in Pretoria.

He was handed a report of the SA Law Reform Commission containing recommendations and a proposed draft Bill on the recognition of Islamic marriages.

Maduna thanked the commission for its work, saying the topic was a "very difficult and sensitive one" for the government.

Muslims have been trying for decades to have their unions legally recognised.

Islamic marriages were regarded as null and void by South African courts until a 1999 Supreme Court of Appeal ruling recognised monogamous Islamic marriages for the sole purpose of support.

This ruling did not deal with issues such as polygyny (the practice of marrying more than one wife), the status of respective spouses, maintenance obligations, and marriage termination.

The commission said in a statement gross inequities and hardships still arise from the non-recognition of Islamic marriages.

Bent over backwards

A project committee started work on the topic in 1999 - including wide consultations within the Muslim community.

Judge Mohamed Navsa, who chaired the committee, said among those interviewed were women, theologians, and academics.

"The committee has bent over backwards to accommodate all views," he said.

"What you see is a tribute to the Muslim community at large."

He said the committee tried to give effect to Islamic values such as justice and fairness. Those not satisfied with the outcome could opt to be excluded from the envisaged law.

In terms of the recommendations, Muslims in civil marriages could decide to have the provisions of the Bill apply to them.

All existing Islamic unions would be recognised as valid, but those thus married could decide to opt out of the provisions of the Bill.

The draft Bill covered monogamous and polygynous Islamic marriages, which may exist alongside a civil marriage.

The commission also proposed that a Muslim judge be appointed to preside in legal disputes. On appeal, the views of two accredited Muslim institutions may be solicited to comment on questions of law.

"In the commission's view, the adoption of its proposed draft Bill by Parliament will go a long way in creating legal certainty with regard to Muslim marriages, will give effect to Muslim values, and will afford better protection to women in those marriages," the statement said.

- SAPA