On August 31st, a South African court ruled that Islamic law marriages must be recognized by the government in order to provide greater protections to women and children in case of divorce.
Currently in South Africa, the law recognizes “customary marriages,” but only when they are part of the “customs and usages traditionally observed among the indigenous African peoples of South Africa.” However, the Western Cape High Court in Cape Town found that the different treatment given to Muslim marriages and to civil and customary marriages violated South Africa’s progressive Constitution.
Specifically, the Court noted that previous attempts had been made “on a piecemeal basis” to try “to ameliorate the hardships faced by women and children in Muslim marriages.” Most recently, the Court ruled that when applying estate law, the term “surviving spouse” should include spouses from Islamic law marriages (even polygamous marriages). That decision was featured on the SHARIAsourceBlog in September 2017.
The Court rejected the argument that “the majority of women in Muslim marriages have freely chosen to avoid protections offered in civil marriages,” noting that until recently there were not many imams who were registered to officiate weddings, and furthermore, some women might be unaware of the difference. “Even those who do realise the need for a civil marriage,” the Court pointed out, “may lack the bargain of power to convince their husbands to register civilly.”
The Court ordered Parliament to draft new legislation within two years. At that time, Muslim marriages will become subject to the current divorce law.
Read the Court’s decision here.
The ruling came just a few weeks after an English High Court judge ruled in favor of a Muslim woman seeking a divorce from her husband, despite the fact that their marriage was never formally registered in the UK.