MUSLIM DIVORCEES AND RIGHTS OF CHILDREN

Cape Town – Muslim marriages will be recognised as legal from Wednesday 30th April 2014 for the first time in South African history – a move described as more than 300 years in the making.

More than 100 Muslim clerics, or imams, will on Wednesday graduate as marriage officers in a pilot project by the Department of Home Affairs which will allow them to officiate over unions that will be recognised by law.

Since Muslims were first brought to South Africa as slaves more than three centuries ago their marriages had no legal standing before Wednesday’s graduation.

Children born from these marriages were regarded as illegitimate, while women were not regarded as spouses when attempting to claim against their deceased husbands’ estates.

The imams graduating on Wednesday completed a three-day course during which they learned about the Marriage Act of 1961 and wrote an exam.

Deputy President Kgalema Motlanthe, Home Affairs Minister Naledi Pandor, her deputy Fatima Chohan and Muslim leaders are to attend the graduation in Pinelands on Wednesday.

All first-time Muslim marriages will now be recorded on the National Population Register, said Home Affairs spokesman Lunga Ngqengelele.

Attorney at the Women’s Legal Centre, Hoodah Abrahams, said having Muslim clerics as official marriage officers had important legal implications for Muslim couples and their children.

“This is definitely a step in the right direction for the long struggle to have Muslim marriages legalised. We have been strong advocates to have it recognised,” she said.

Abrahams said Muslim women had for many years suffered as a result of their marriages not being recognised under the South African Marriage Act.

“In most scenarios, we find that when men are the breadwinners and when there are complications in the marriage, women are not favoured legally.

We currently have a number of workshops to raise awareness for people who get married and are not aware that their marriages are not legally registered,” she said.

The centre had fought the case of Hanover Park grandmother, the now late Suleiga Daniels, who in 1994 lost her house because she was not recognised as the surviving spouse after her husband, Moegamat Daniels, died.

The couple had moved into their home when they were married in 1977 and shared it for 17 years until his death. Because they had been married according to Muslim rites, Daniels was informed by the Master of the High Court on her husband’s death that she could not benefit from his estate. Daniels’ case was won in 2011.

Daniels’ daughter Yasmina Mohamed told the Cape Times on Tuesday: “Our mother died in March last year. I’m very pleased to hear that Muslim marriages will be recognised at last. Muslim women will now be better protected. My mother had a very long battle to get what rightfully belonged to her and had vowed not to give up.”

In another landmark case, Fatima Gabie Hassam’s marriage was recognised only after a lengthy legal battle. She was the first of her husband’s two wives. He died without leaving a will and she could not inherit, but in 2004, and with the help of city attorney Igshaan Higgins, she went to court and won.

The Western Cape High Court ruling in her favour was referred to the Constitutional Court for confirmation.

Confirming the ruling, Constitutional Court Justice Bess Nkabinde said Hassam’s right to equality had been violated and that she had been discriminated against on the grounds of religion and marital status.

Higgins, who was on pilgrimage in Mecca on Tuesday, said: “Muslims in South Africa have suffered the indignity of non-recognition for more than (three centuries) and it is certainly a step in the right direction for the imams to be recognised as marriage officers.

“However, any celebration should be suspended until Muslim Personal Law becomes a reality for all those Muslim wives, mothers, daughters and sisters who suffer proprietary hardships on a daily basis as a result of non recognition.”

Muslim Judicial Council SA (MJC) deputy president Sheikh Riad Fataar said the marriage officer’s course was “groundbreaking” for Muslim marriages after decades of attempts to have them recognised.

Muslim Spouses- Are they ‘equally’ married? By Sheri Breslaw. Published in De Rebus December 2013.

The Children’s Act 38 of 2005 brought about significant changes and improvements to the rights of children, the rights of fathers of children born out of wedlock, and the rights of other ‘interested parties’, who previously did not enjoy such rights. The Civil Union Act 17 of 2006 has given same-sex couples the opportunity to marry and be afforded the same rights in law as heterosexual couples.

Where South African statutory law is still fundamentally lacking is in the recognition of the rights of and protection of parties to marriages contracted only in terms of Muslim law. For couples married in accordance with civil law, marriages and divorces are dealt with under the relevant statutes, namely the Marriage Act 25 of 1961, the Civil Union Act and the Divorce Act 70 of 1979. No provision is, however, made in statutory law for the recognition of marriages concluded in terms of Muslim Shariah law. Previously the courts have held that this was due to the potentially polygamous nature of Muslim marriages.

However, it is not as if this shortcoming in the law has not been noticed. The status of Muslim marriages has, since 1990, been the subject of continuing investigation by the South African Law Reform Commission (SALRC). Despite the efforts of the SALRC, as well as the draft Muslim Marriages Bill, which was published as long ago as 2000, there has been no change to statutory law as it stands.

So where does that leave attorneys when they are consulted by clients who want to know what their rights – or lack thereof – may be? Fortunately, it seems that while the legislature has lagged behind, the courts have not. In determining disputes between parties who were married by Muslim law alone, the courts have had to rely on the development of case law in order to come to the formal assistance of parties involved in litigation.

In terms of Muslim law, the system of community of property was not recognised as the default principle, as it is in civil law. Instead, Muslim marriages are deemed to be marriages out of community of property, excluding the accrual system. Where both parties to a marriage have contributed assets to that marriage, each retains ownership of those assets, both during and on termination of the marriage. The estate is thus considered to be one in which separate assets are mixed, but are not merged into one estate.

The non-tangible contribution made by one partner to an estate, such as the raising of children or the maintenance of the home, are under Muslim law not deemed to be the equivalent of tangible contributions. This is therefore where one of the greatest difficulties lie for spouses when divorcing. In terms of Muslim law there is no possibility of redistribution or of a universal partnership claim, as would be the case in civil law.

To demonstrate how South African case law has assisted in developing this area of the law, it is useful to start with the case of Ismail v Ismail 1983 (1) SA 1006 (A), where it was held that marriages solemnised under Islamic law do not enjoy the same status of marriage in civil law because these unions are potentially polygamous and therefore against public policy.

That same year, however, in the case of Moola and Others v Aulsebrook NO and Others 1983 (1) SA 687 (N) the judge was a bit more charitable and held that Muslim marriages are putative marriages. Where this assisted at the time was that the children born of such a union. The Act has since provided that children born of Muslim marriages are legitimate, as the Act specifically includes religious marriages in the definition of the word ‘marriage’. The courts then seemed to take a step back in the case of Solomons v Abrams 1991 (4) SA 437 (W) by deciding that a putative marriage could not come into existence unless the parties went through a marriage ceremony performed by a marriage officer as defined in the Marriage Act (which would not include an imam).

In S v Makwanyane and Another 1995 (3) SA 391 (CC) the Constitutional Court, for the first time, recognised the need to take account of the traditions, beliefs and values of all sectors of society, as well as the fact that the Constitution expressly acknowledges the situation where legal pluralism based on religion can be recognised.

In the case of Ryland v Edros 1997 (2) SA 690 (C) it was held that, since a Muslim marriage is a contract from which certain proprietary obligations flow, it provided reason enough to impose some of the consequences of civil marriage on a Muslim marriage, chiefly the obligation of maintenance. Where the decision stopped short however, was in regard to the patrimonial consequences of the marriage. The judge was not prepared to make a ruling that the wife was entitled to a share of the husband’s estate.

In Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality intervening) 1999 (4) SA 1319 (SCA) it was held that a legally enforceable duty of support will arise from a marriage in accordance with the tenets of a recognised and accepted faith, and that the ‘inequality, arbitrariness, intolerance and inequity’ that would result from not following this approach was inconsistent with the new ethos of a constitutional democracy. In this case, which involved a claim made by a spouse in a Muslim marriage against the deceased estate of her spouse, the court emphasised that the crucial question was whether the relationship between the deceased and the dependant was one that deserved recognition and protection at common law.

In the case of Daniels v Campbell NO and Others 2004 (5) SA 331 (CC) the Constitutional Court held that a Muslim spouse in a monogamous marriage had the right to inherit and the right to claim maintenance from a deceased spouse who had died intestate. It was further determined that the word ‘spouse’, as contained in the Intestate Succession Act 81 of 1987, as well as the word ‘survivor’, as contained in the Maintenance of Surviving Spouses Act 27 of 1990, should apply to spouses married in accordance with Muslim law. In the case of Hassam v Jacobs NO and Others 2009 (5) SA 572 (CC) the Constitutional Court went further and held that this right extended to polygamous Muslim unions as well.

The issue of maintenance was dealt with in the case of Khan v Kahn 2005 (2) SA 272 (T) where it was decided that partners in Muslim marriages, irrespective of whether such marriage was monogamous or polygamous, owe each other a duty of support and therefore have the right to claim maintenance from one another in terms of the Maintenance Act 99 of 1998. In the case of Mahomed v Mahomed 2009 JOL 23733 (ECP) this right to claim maintenance was extended to include a claim for interim maintenance in terms of R 43 of the rules of the High Court, relating to applications brought by a spouse pending the finalisation of divorce proceedings.

In Du Toit v Seria 2006 (8) BCLR 869 (CC) the issue before the court was whether there existed a universal partnership between spouses married in terms of Muslim law. The party wishing to claim that such a partnership existed, Mrs Du Toit, took the matter to the Constitutional Court. Unfortunately, by virtue of the fact that the constitutional issues relating to the recognition of Muslim marriages had not been specifically pleaded in the initial action, which she had brought in the lower court, the appeal was dismissed and no finding was made.

In the case of Butters v Mncora 2012 (4) SA 1 (SCA) the Supreme Court of Appeal recognised and confirmed the existence of a universal partnership between a couple who had lived together for 20 years. The court awarded the claimant 30% of the other party’s estate. The court ruled that, while cohabitation does not give rise to special legal consequences, a cohabitee can invoke a remedy in private law which, in this case, was based on the law of partnership. But the Bench observed that it is not possible to establish a norm for cohabitees, as could be done for spouses, and that a universal partnership is not the same as a marriage in community of property.

The issue of a spouse’s claim to the other spouse’s pension interest came before the pension funds adjudicator in the case of Tryon TY v Nedgroup Defined Contribution Pension and Provident Funds and Another (unreported case no PFA/GA/8796/2011/TCM). The adjudicator had to deal with the question of whether a spouse in an Islamic marriage can share in the other spouse’s pension interest on divorce. The adjudicator ruled that it is possible for a spouse married and divorced in terms of Islamic rights only to share in the other spouse’s pension interest on divorce.

The member spouse’s retirement fund would have to make payment to the non-member spouse if the agreement reached between the spouses regarding the division of pension interest states as much and has been made an order of court.

In terms of the Civil Proceedings Evidence Act 25 of 1965 as well as the Criminal Procedure Act 51 of 1977, a spouse to a Muslim marriage may not be compelled to testify in civil or criminal proceedings against his or her spouse, as is the case with spouses who are civilly married. Similarly, the Transfer Duty Act 40 of 1949 exempts from duty property inherited from the deceased estate of a spouse married in terms of Muslim law. The Estate Duty Act 45 of 1955 also provides an exemption on property accruing to a surviving spouse to a Muslim marriage from the estate of the deceased spouse.

While it is regrettably obvious that the South African legislature has a long way to go in terms of equalising the rights of Muslim spouses, it is equally apparent that the courts have made every endeavour to make use of the Bill of Rights, as well as the general ethos of the country, where possible, to extend the rights of Muslim spouses so as to afford them the same rights as parties to a civil or customary union.

Sheri Breslaw BCom LLB (Unisa) is an attorney at Fairbridges in Cape Town.