Once more under the microscope......how vulnerable are Muslim women in religiously sanctioned but unregistered marriages?

2013-10-26 17:28

My disclaimer

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What I have written is not conclusive. My purpose here is to stir debate and arouse interest and constructive comment through the platform that News24.com provides.

It represents my individually informed views. The circumstances of the case that I put on the discussion table certainly, affords an illustration of a Muslim woman’s vulnerability.

The ease with which a husband in an Islamic union may divorce his wife necessitates the promulgation of a law that protects the vulnerable amongst us for in terms of our current law, a dissolution of an Islamic marriage in a manner recognised by the Islamic faith results in the woman no longer being a surviving spouse for purposes of the Intestate Succession Act and the Maintenance of Surviving Spouses Act.

Introduction

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Due to considerable delays in the promulgation of the Muslim marriages bill, dealing with the legal intricacies of and rights of parties to such marriages, a High Court in the Western Cape was called upon to adjudicate on the rights of a Muslim woman in an unregistered but religiously sanctioned marriage. In a ground breaking and precedent setting judgment,the court came to the assistance of a widow whose husband had died intestate.NGOs such as the Women's Legal Circle welcomed the judgment and expressed the hope that this judgment would sober up those who are holding back the promulgation and place the issue of Muslim marriages firmly and indelibly on the legislative

In that judgment handed down on Friday the 25 October 2013 the court held that such women were most vulnerable and that, my take is that, it was time that Muslim judicial authorities snapped out of their self induced paralysis and placed the issue pertaining to Muslim marriages firmly on the national legislative agenda.

Briefly these are the facts. The case is easily accessible on the website of www.saflii.org.za and the citation is Faro v Bingham NO and Others [2013] ZAWCHC 159 (25 October 2013)

The case involved a woman who married a Muslim man in a ceremony which was not officiated by a marriage officer but by an Imam.For the sake of her dignity, I shall refer to her as "the wife" or "the widow".

This meant that in terms of civil law, the couple was not married.

The husband subsequently annulled the marriage under Islamic rite, but the couple later resumed sexual relations. According to the tenets of Islam, this meant that the annulment, called a Talaq, was no longer valid.

The husband died on 4 March 2010, months after the couple's second child was born.

The man's adult son from a prior marriage then forced the wife out of their home.

The wife/widow was initially made executrix of the man's estate, but the Muslim Judicial Council (MJC) issued a certificate declaring that the marriage had been annulled but later retracted this based on new evidence.

The widow approached the court seeking, among other things, to be recognised as the man's legal spouse and for the attorney to be removed as executrix of the estate.

The court ruled that the wife/widow be granted the status of legal spouse and the person appointed as executrix be removed as executrix, with no entitlement to remuneration.

The court had also found there had been considerable delays in the promulgation of the Muslim marriages bill, dealing with the legal intricacies of such marriages.

Here is my take

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Having taken the time to study the judgment very intensely , I welcome the judgment and unreservedly applaud the Women's Legal Circle, amongst others for once again firmly and principally as well as doggedly determined that no woman be left out as beneficiary in our constitutional democracy.

We are familiar with the Constitutional Court decision in Daniels v Campbell (a) in 2004 which determined that the word ‘spouse’ as used in the Intestate Succession Act 81 of 1987 and the word ‘survivor’ as used in Maintenance of Surviving Spouses Act 27 of 1990 were to be interpreted as including the surviving partner to a monogamous Muslim marriage, even though such a marriage may not have been solemnised by a marriage officer and thus not constitute a marriage for purposes of civil law.Any contrary view was said to be a discriminatory interpretation out of step with ‘the new ethos of tolerance, pluralism and religious freedom which had consolidated itself even before the adoption of the interim Constitution’

This judgment, handed down on Friday, seems to endorse an expansive interpretation regarding the rights of Muslim women who are most vulnerable in instances when their husbands either terminate their marriage either by divorce or on death. What is your opinion?

Vulnerability and the uncertainty of Muslims Women?

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Indeed, once again, the judgment highlights the vulnerability of women in Muslim marriages as regards their rights.

The decision of the Constitutional Court in Daniels v Campbell (a) indelibly brought into the human rights regime such women as this case I am discussing, even though their marriage may not have been solemnised by a marriage officer and thus not constitute a marriage for purposes of civil law. To cement these rights and to demonstrate the evolution of rights of Muslim women, the Constitutional Court went further in 2009 in Hassam v Jacobs NO (b) by holding that s 1(4)(f) of the Intestate Succession Act was unconstitutional, resulting in an order which afforded protection to multiple spouses in a polygamous Muslim marriage.

I also concede that the Women's Legal Circle expression of hope that this judgment would snap Muslim Judicial Authorities such as the MJC out of their paralytic state and place the issue firmly on the national legislative agenda and engage in a consensus reaching law that would serve to firmly entrench rights of parties to Islamically sanctioned marriages is well grounded and intended.

I write in my personal capacity, not only as a Muslim but as a human rights practitioner. I do so, notwithstanding the realisation that this article and the judgment I am discussing would attract the howls of Islamophobes and Muslims across the board. Let them do their damnedest and my silent rebuttal will be my weapon of choice.

We must have a law in place soon.And yes regrettably there is no statute which deals comprehensively with the legal position of persons, such as this widow, married by Islamic rites. Importantly for purposes of consideration as well, there is no legislation regulating the dissolution of such unions.

To it's credit, the court stated that for obvious obvious reasons, a court would be most reluctant to make orders affecting the substantive law in this area of Muslim,Islamically sanctioned marriages.

It recognised that this was a sensitive subject requiring widespread, across the board consultation. The appropriate regulation of Islamic marriages requires more detailed provisions than a court could appropriately incorporate in a judicial order.

Why should Muslim marriages receive special treatment?

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The wife claimed on oath and the evidence was not challenged, that during October 2010 she was forced out of the family home where she had lived with her husband and that her belongings were thrown into the yard.Thereafter she was obliged to live in shelters or on the street. The two minor children born as a result of her marriage were taken into care. This is powerful justification as to why.

I am on record as saying that because such a union is not regarded as a ‘marriage’ for purposes of the Divorce Act 70 of 1979, the latter Act does not regulate the dissolution of Islamic marriages (except where they were solemnised by a marriage officer in accordance with our law) women are most vulnerable.

As to why should such marriages receive special treatment, there are many reasons I say so. First and foremost is the recognition under the Bill of Rights giving recognition to freedom of religion and all the fruits thereof even though, as the Constitutional Court pointed out in Prince v The Cape law Society (c) and in Christian Education South Africa v The MInister of Education (d) that no right was absolute and it could be limited by a law of general application. Secondly, we have a law regulating African customary marriages and a law that regulated relationship between gays and lesbians. So this should silence though critics of Islam.

On balance as, the evidence in this case showed, a husband in an Islamic union may divorce his wife with relative ease and informality. In accordance with current law, a dissolution of an Islamic marriage in a manner recognised by the Islamic faith results in the woman no longer being a surviving spouse for purposes of the Intestate Succession Act and the Maintenance of Surviving Spouses Act.

That is why I say Muslim women are most vulnerable and why I am pushing for resolution through consensus of course for the promulgation of a law to regulate Muslim marriages as soon as possible as this injustice cannot be permitted to be condoned through our collective silence.

What is the government position?

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Government is aware of the desirability of enacting legislation to regulate the solemnisation and dissolution of Islamic marriages in a manner consistent with the Constitution.

As early as July 2000 the South African Law Reform Commission circulated an issue paper on the subject. Numerous interactions with stakeholders had taken place.

So what is the hold up?

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Good question. I would venture to say that the views entrenched by the positions taken by Muslim judicial authorities is largely exacerbated by perceptions that the executive could interfere in Shariah related matters in the area of Muslim personal law. So until these perceptions can be satisfactorily addressed and laid to rest we are bound to experience a deadlock in the stalled process leading up to promulgation and recognition of rights and obligations.

Conclusion

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I reiterate. What I have written is not conclusive. It represents my individually informed views. The circumstances of this case, certainly, afford an illustration of a Muslim woman’s vulnerability.

On the substantive issue I have no reason to doubt, that the topic is a sensitive one and that some stakeholders consider that the proposed legislation will trench upon their fundamental right to freedom of religion as guaranteed by s 15(1) of the Constitution.

Nevertheless, at some point in time, the nettle will need to be grasped and this should be sooner than later if we are to seriously uphold the Islamic ethos that women are afforded a superior right to be protected by their men against any harm or abuse.

Saber Ahmed Jazbhay

Attorney

follow me @jazlaw24

(a) Daniels v Campbell and Others [2004] ZACC 14

(b) Hassam v Jacobs NO and Others (CCT83/08) [2009] ZACC 19

(c) Prince v President of the Law Society of the Cape of Good Hope (CCT36/00) [2002] ZACC 1

(d) Christian Education South Africa v Minister of Education (CCT4/00) [2000] ZACC 11

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