Tuesday, August 31, 2004

Once regarded as a step backward (Ismail v Ismail), the recognition of Islamic marriages is now considered a reflection of the progressive values embodied in the South African Constitution.A series of cases in the post 1994 period has reaffirmed that in principle there is no barrier to the recognition of Islamic marriages, or at least some of their consequences, in the South African legal framework.  In Ryland v Edros, the court recognised certain of the consequences of an Islamic marriage on the basis of contractual principles.  In essence, the court recognised an Islamic marriage as being a contractual arrangement (in the broad sense of the expression) which gave rise to enforceable rights and obligations.  The case of Amod v Multilateral Vehicle Accidents Fund (Commissioner for Gender Equality Intervening) took matters further by recognising that an Islamic marriage gave rise to a duty of support.  More recently, the case of Daniels v Campbell NO and Others held that a spouse in an Islamic marriage was entitled to be regarded as a spouse for the purposes of intestate inheritance.The development of law by the progression of cases is a slow process.  In an effort to expedite matters, the South African Law Commission has spent several years preparing a draft Islamic Marriages Bill (“the Bill”), and recently published the Bill as part of its Report on Islamic Marriages and Related Matters. In broad outline, the Bill provides for the recognition and enforcement of Islamic marriages in the South African legal framework.  This is accomplished by prescribing certain requirements for the validity of Islamic marriages for the purposes of South African law, and provides for their enforcement and dissolution.  Although the provisions of the Bill reflect the provisions of Islamiclaw itself, the Bill embodies a synthesis between Islamic law and the relevant provisions of South African law.The Bill makes provision for its application to Islamic marriages entered into before or after its commencement, subject to an election exercised by the parties to such a marriage.  Provision is also made for the application of the Bill to certain civil marriages.The Bill allows polygynous marriages subject to the authorisation of the Court.  It also requires that a divorce in the form of the Islamic law mechanism of talaq be registered with a marriage officer and confirmed by the Court.  Some of the more familiar features of the South African law relating to marriage are reflected in the Bill, particularly those relating to the maintenance of spouses, the interests of minors and the role of the Family Advocate.  An interesting innovation in the Bill is the provision for compulsory mediation and arbitration in relation to disputes between spouses in an Islamic marriage.  To cater for certain concerns in the Muslim community regarding judicial proceedings, matters relating to Islamic marriages are generally to be heard by a Muslim judge sitting with two Muslim assessors having specialist knowledge of Islamic law. In the case of an appeal to the Supreme Court of Appeal, expert opinions relating to points of law are to be filed of record.To cater more fully for the recognition of Islamic marriages, the Bill envisages the amendment of other items of legislation in which certain consequences are attached to the institution of marriage.  In particular, the Bill provides for the definition of “spouse” in the Intestate Succession Act to be amended, thus remedying the grievance of Muslim spouses who, until the recent case of Daniels v Campbell NO and Others, did not inherit anything from their intestate spouses.Considering that several provisions of the Bill may be subject to further amendment, it is at this stage unpredictable what the structure of any Act relating to Islamic marriages will be.
Shahid Sulaiman
AssociateBowman Gilfillan Findlay & Tait
Phone  021 480-7907Fax  021 423-3141E-mail