The Recognition of Muslim Marriages

When we get married, we only ever think of ‘happily ever after’ and don’t expect for things to go wrong – but sometimes they do go wrong, and if you’re living in South Africa and have only had a Muslim marriage ceremony (nikah), then you as a woman could most likely be at a disadvantage because of it since you won’t be covered by South African law should something go wrong.

Today’s post is by an anonymous guest writer who shares her story and struggles with the legal system after her divorce. Her story is one of many, and in sharing it we hope to make more people aware of the obstacles and struggles faced after a divorce…and also in the hopes that we can make valuable changes to the legal system that will protect us in the future.

“At the outset, I must say that my story is not unique. Many women find themselves in the same, if not worse position as me.

I was a student when I got married, and continued to study during the first year of my marriage, while assisting my then husband in the family business. I was encouraged to give up my studies when my eldest son was born to be a supportive wife and mother, while actively participating in the running of our businesses. Our aim as a couple was to work hard and save towards our retirement. We made many sacrifices to get to the financially stable position we were in at the time of our divorce.

I now find myself, after 19yrs of marriage, as a mother of 3 sons, cast out after all the hard work, without a cut & dried entitlement to a share of the assets accumulated together during our long-standing marriage.I am facing an uncertain future and no financial stability. My work prospects are limited as I have no work experience and my age is a factor too. I am 42yrs old.

I’m at the mercy of my ex-husband until the matter is resolved, a process that has taken over 2yrs already, without a trial date being allocated. I have to accept whatever he decides to pay in the way of maintenance.

Islam is a fair religion that promotes equality. In chapter 2 verse 231 as well as chapter 65 verse 2, the Quran explicitly states that in the event of divorce, the couple should either reconcile on equitable terms or separate on equitable terms. This means fair, just and equal. Why does the man end up with everything, while the woman is left dependent on the goodwill of male family members?

Many clerics argue that Muslim marriages are out of community of property, without accrual. However, our religion allows the couple to choose to share the assets equally.

This is not a religious argument. Instead, it is a constitutional, human rights and socio-economic issue. Islam teaches that we are in a covenant with the country in which we live. The law of the land reigns supreme and we are bound to these laws. Our constitution guarantees protection from discrimination based on, among other things, gender, race and religion. As Muslims, we are protected in the workplace by this clause. Non-recognition of Muslim marriages is unfair, discriminatory and prejudicial.

Muslim marriages should be regarded just as meaningful as any other marriage. By not recognizing our customary marriage, Muslim women are left disadvantaged and vulnerable.

The default position of the court for other marriages is to protect the vulnerable. Even the marital regime for African customary marriages has changed to align itself with the current law, in that in the absence of an Antenuptual contract (ANC) civil and African customary marriages are automatically in community of property. So why, more than 20yrs since the birth of a democratic South Africa, has the constitution still not recognized Muslim marriages?

Why are Muslim women being punished for not stopping at the nearest magistrate’s court to get a civil marriage?

There has been some progress in the recognition of Muslim marriages in that our imams are now becoming registered marriage officers and as such can, at the time of nikaah, register the marriage as a civil one. This protects couples getting married now, but those of us married pre-2014 are still not protected and are still in a very vulnerable position. There have also been numerous cases where judgement was handed down in favour of the wife, however, the wheels of the judicial system have been turning very slowly. In fact, it appears to have stalled when it comes to Muslim marriages; not enough progress is being made.

I believe the government can assist Muslim women by including Muslim marriages under current legislation. Muslim marriages should be subject to the same laws and recourse as other civil marriages. It’s as simple as getting an ANC drafted, should the couple decide not to have a joint estate. If that is a requirement for civil and customary marriages, then it should be a requirement for Muslim and other religious marriages too.

I find that there’s a lack of education when it comes to marriage. Both parties should be advised of their legal rights & responsibilities at the time of the marriage. This could be done either by the person officiating the marriage I.e. the Imam, or a marriage counsellor. As it stands, women especially are not aware of their rights, and most end up in a vulnerable position when the marriage ends in a divorce because they get married blindly, or in good faith or they quietly accept what the social norms dictate, rather than seeking legal advice. They also find that the system is stacked up against them as their Islamic marriage is not recognised.

The costs of going to court to resolve the matter is another factor which deters women from seeking recourse. As a result, many women don’t exercise their legal rights and end up accepting whatever, if anything, is given to them as a divorce settlement. There have been so many cases where women and their children have been turned out of their homes because they don’t know their rights.

The entire court process needs to be streamlined, and by recognizing our customary marriage and allowing us the same recourse as other civil marriages, we will not have to come to court to argue points that would have been covered under our current laws.

This discrimination is leading to a lot of unfairness & injustice, especially in the case of Muslim women as they are from a minority group & their voices are not being heard. It’s the duty of the government to listen to each and every citizen of our country and ensure justice and equality for all.

South African Muslims, & South African Muslim women are stakeholders in this society. They have played a very important role in the struggles of our country’s past & they remain integral to it’s future. They cannot & must not be ignored.”

Thanks for reading!!

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