UUCSA Explainer | Why has UUCSA gone to the Constitutional Court?
Why has UUCSA gone to the Constitutional Court?
UUCSA is neither an applicant nor respondent in the matter. The Women’s Legal Centre went to court to have Muslim marriages recognised. Our role is simply to offer a perspective for the consideration of the Constitutional Court. Our function as amicus is to protect the interests of Islam and Muslims and to preserve the Shariah.
What is the hearing at the Constitutional Court about?
The central issue in the Constitutional Court hearing is to determine whether or not the Constitution places an obligation on the State to adopt legislation recognizing Muslim marriages and their consequences. The hearing is not about the MPL Bill; it is not about laws pertaining to nikaah and Talaq. The hearing therefore has nothing to do with the Muslim Marriages Bill. The dynamics have changed because of the Supreme Court of Appeal ruling. MPL is no longer an option.
Is it not wiser to simply abstain from getting involved?
We no longer have the luxury of debating whether we want our marriages regulated or not. The Courts have already decided and settled this matter. The Courts have given government 24 months to recognize Muslim marriages and their consequences by either amending existing legislation or passing new legislation, following the declaration of constitutional invalidity of the Marriage Act and the Divorce Act. The Courts have also ruled that in the interim, the Divorce Act will apply to all Muslim marriages. The harsh reality is that the interim relief may become the default position for a long period of time if government drags its feet in amending existing legislation.
If our Muslim marriages (nikaah) and divorces fall within the ambit of the Divorce Act, the courts will:
• In the case of a divorce and in the absence of an agreement between husband and wife, decide how the assets between husband and wife will be distributed;
• The wife will be able to claim for maintenance beyond the iddah period;
• A wealthy wife will be obliged to provide maintenance for her destitute husband in the event of a divorce, and,
• The court may make an order that the one party forfeits the assets which would have been acquired by him/her as a result of marriage in community of property either wholly or in part, based on certain criterion.
We cannot allow the state to compel Muslims to follow secular law. If we sit back and do not actively work towards preserving the interest of Muslims, we will be forced to regulate our marriages and divorces according to the law of the country.
Is it true that UUCSA did not consult one of its founding members, the JU (KZN), when applying to be amicus?
Due to our protracted differences with the JU (KZN) on the matter of MPL, it was agreed to allow the remaining members of UUCSA and the JU (KZN) to pursue their own preferred course of action. The JU (KZN) was accordingly asked to recuse itself from MPL deliberations at UUCSA meetings. The fact that both UUCSA and the JU (KZN) appeared as amicus in the Western Cape High Court presenting diametrically opposing views attests to the fact that there was a tacit understanding that each party is free to pursue its own course of action. We therefore did not feel it necessary to inform the JU (KZN) of our intention to apply as amicus.
This arrangement we believe is not a sign of weakness, it is indicative of the fact that members do not lose their autonomy or their right to differ with the majority view. This is an indication of the open accommodation of differences of view within UUCSA.
Moulana A.K. Allie
17 Dhu al Hijjah 1442
28 July 2021