Recognition of Muslim Marriages and their Consequences
A PUBLIC STATEMENT
The recognition of Muslim Marriages and their consequences has been a subject of interest, discussion and debate within the Muslim community and legal circles for more than two decades. The Jamiatul Ulama South Africa (JUSA) has from the inception of this project taken a keen interest and played an active part, and continues to do so, in order to preserve Islam and secure the rights of Muslim men, women and children.
The Women’s Legal Centre Trust (WLCT) of Cape Town brought an application to the Constitutional Court (ConCourt) on 5th August 2021 seeking the legal recognition of Muslim marriages. It is however premature to comment on the outcome until the ConCourt issues its judgement. JUSA will decide on a course of action once the ConCourt pronounces its decision.
In the interim, JUSA takes this opportunity to draw the attention of our community to the following pertinent aspects:
1. The Muslim Marriages Bill (MMB) which was drafted by the Project Committee under the auspices of the Law Commission in 2000, was not the subject of the hearing at the ConCourt on Thu 5 Aug 2021.
2. The MMB was shelved by the government in 2013 and is not up for discussion.
3. The MMB is not relevant to the discussion related to the recognition of Muslim Marriages in South Africa.
4. The matter at the ConCourt is between the WLCT and the State. There is not any Muslim organisation that is party in the matter, as a litigant.
5. The WLCT is an independent NGO that seeks to further an agenda for women’s rights.
6. We are not aware of any association or working relationship between the WLCT and any Muslim Ulama Body in South Africa.
7. JUSA, in its submission of 17 May 2021 on the Single Marriage Statute Bill, had called for the following:
7.1 “In no way is JUSA calling for the re- enactment of the Muslim Personal Law (MPL), rather, we are simply stating that the recognition of Muslim Marriages without the recognition of the Islamic consequences that follow is unacceptable.”
7.1.2 Muslims must be allowed to regulate their marriages via contracts drafted in accordance with Islamic Law.
7.1.3 Mandatory mediation and voluntary arbitration to minimise the need to resort to courts to resolve disputes. It had accordingly asked for an amendment to the Arbitration Act which currently precludes arbitration on matrimonial issues.
7.1.4 The state cannot compel Muslims to regulate their marriages under civil law that Muslims do not identify with; it had therefore suggested an opt-out clause in the proposed statute.
8. JUSA has for a few years promoted the need for marriage contracts. Basic marriage contract copies prepared by JUSA are available from the body’s branches. (See 7.1.2, above)
As a Muslim Minority Community in South Africa we face diverse challenges which can only be overcome by adopting a united front. Unity does not mean thinking alike but in the case of differences of opinion it requires tolerance and respect, putting our minds together in order to find solutions to our challenges.
We ask our community to continuously make du’aa to Allah Subhana wa Ta’aala and beg Him to guide us to that which He is pleased with, and to keep us steadfast in the pursuit of serving His pure Deen and in serving the Ummah of Rasulullah Sallallahu ‘alayhi wasallam.
The Executive Committee
Jamiatul Ulama South Africa
02 Muharram 1443/ 11 August 2021