Why is South Africa yet to legalize Muslim marriages?

The South African High Court is set to issue a ruling on a case filed by the Women’s Legal Center (WLC)  in 2014, a non-profit law organization assisting women with legal services in South Africa, demanding legal recognition of Islamic marriages.

In the suit, WLC accuses the South African government of failing to create a law that recognizes Muslim weddings.

Currently, the Muslim weddings, which are celebrated in way of Islamic rites, are not recognized in law, unlike other marriages entered into under civil or African customary law. Couples married by Islamic or Muslim rites are therefore regarded as unmarried.

The case is part of a law reform process that has been going on in the country for over ten years. Unfortunately, the process appears to have ground to a halt in recent years.

The existing customary marriage act, which was enacted in 2000, was designed to address this inequality but unfortunately, it still doesn’t recognize Muslim marriages.

Its wording specifically defines customary marriages as “customs and usages traditionally observed among the indigenous African peoples of South Africa, and which form part of the culture of those peoples”.

It’s on this basis that WLC has gone to court wanting the South African government to expedite the process of putting in place the necessary legal reforms.

“When civil or customary marriages break down, the law steps in to ensure fairness between the spouses and to protect the rights of the children. This is not the case in respect of Muslim marriages or other religious marriages,” WLC argues in the petition.

The organization insists that married Muslim women are often left without access to property, money or resources in the event of a divorce.

The Muslim law places the responsibility of deciding when a woman needs divorce on the husband and no religious organization can compel him to grant the divorce if he doesn’t feel like it.

A law recognizing this type of union is therefore important as it will give wives equal authority to end the marriage and inherit property.

According to WLC, the failure by government to provide a law that offers equal remedies to Muslim couples as those available to couples married in civil and customary law is a violation of Section 9 of the South African Constitution, which stipulates that everyone is equal before the law.

But not all Muslims in South Africa support the push to have their marriages legalized.

In 2015, an advocate representing two Islamic organizations contended that the WLC was not qualified to appear before the Western Cape High Court to fight for the recognition of Muslim marriages.

In his submission, the lawyer, Mr. Zehir Omar, argued that legal center’s appeal to give legal recognition to Muslim marriages was unconstitutional as it singled out Islam rather than all religions, which face similar issues of gender inequality.

Marriage in Islam

A lawful Islamic marriage is regarded as a legal contract between a man and a woman, who consent to the union of their own free will. The two must sign a formal, binding contract, which is considered integral to a religiously valid Islamic marriage.

The contract also outlines the rights and responsibilities of each partner and must be witnessed by two Muslim witnesses.

Polygamy is allowed in Islam and divorce takes many forms, some of which are initiated by the husband and some by the wife.

According to 2015 estimates, only 1.9 percent of the South African population practices Islam. Majority of Muslims in the Rainbow Nation are migrants from South Asia and North Africa.