For over 300 years Muslim spouses and children suffered discrimination due to their traditional religious marriages not being recognised in terms of South African law. Accordingly, Muslim women were denied spousal benefits such as the right to inherit intestate and to claim maintenance in terms of the Maintenance of Surviving Spouses Act 27 of 1990. Children from such marriages were labelled illegitimate, with attendant adverse consequences arising from this status. Previously, Muslim couples had to have their traditional marriages converted to civil marriages by way of a separate civil ceremony in order for it to be officially recognised and protected as valid marriages.
On Wednesday, 30 April 2014, over one hundred Imams (Muslim clerics) were officially appointed as marriage officers in terms of the Marriage Act 25 of 1961 (“the Marriage Act”) after a three-day course covering the principles of the Marriage Act and after passing an examination on the Marriage Act. These marriage officers are now able to officiate Muslim’s marriages in terms of the Marriage Act and register all marriages they officiate. Muslims whose marriages are officiated in terms of the Marriage Act will be recorded as such on the National Population Register thereby receiving legal status and recognition.
This will come as excellent news to many Muslim women and children who have in the past found themselves in a similar position as the now late Suleiga Daniels, in the case of Daniels v Campbell N.O and Others and Fatima Gabie Hassam in the case of Hassam v Jacobs NO and Others.
Suleiga Daniels was initially not recognised as the surviving spouse of her husband, Moegamat Daniels, when he passed away without leaving a will and she consequently lost her house in 1994. The couple lived in the house for seventeen years as husband and wife after having married according to Muslim law in 1977. Daniels was informed by the Master of the High Court that because they were married in terms of Muslim law, she had no legal right to benefit from his estate. Daniels took to the courts and in 2003 she was successful. The court ordered that both the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of 1990 should be amended to make provision for the term ‘spouse’ also to include “a husband or wife married in accordance with Muslim rites in a de facto monogamous union”.
In the landmark case of Hassam v Jacobs NO and Others, Fatima Gabie Hassam could not inherit from her husband’s deceased estate when he passed away without leaving a will. The reason for this was that her marriage to him was not legally recognised as she was a party to a polygamous Muslim marriage. Fatima also approached the courts for relief and the Western Cape High Court ruled in her favour. The ruling was then referred to the Constitutional Court for confirmation. The Constitutional Court further ruled that Fatima had been discriminated against on the grounds of religion, marital status and gender and that her right to equality had been violated. The Constitutional Court confirmed that women who are party to a polygamous marriage concluded in terms of the Muslim law are deemed to be spouses for purposes of inheriting or claiming from the deceased estate where their deceased husband died without leaving a will.
This initiative to increase the number of Imams who are legally competent to solemnise civil marriages will undoubtedly allow for increased legal protection for Islamic spouses and their children.
This means that those Muslim spouses who wish to conclude a civil marriage at the time of their Muslim marriage may do so, but both spouses will have to consent to such civil marriage. Thus this is not in itself a recognition of Muslim marriages, despite what has generally been reported in the press, but is most definitely a step in the right direction.