Following an application brought before the Western Cape High Court by the Women’s Legal Centre (WLC), the State has been ordered to introduce legislation to recognise Muslim marriages as valid.

To put things in context, Muslim marriage – called a nikah – is not legally recognised in South Africa.

This means that a married Muslim woman is not entitled by law to the assets, accrued with her husband over the course of their union, should they decide to get divorced.

The WLC took the matter to court with the intent of “providing Muslim women and their children with legal protection upon divorce”, reports News24.

“We are encouraged by the court’s decision to compel the government to take steps to ensure that the rights of women in Muslim marriages are realised.

“We celebrate this victory and hope that the State take steps to comply and make what the judgment envisages a reality for women in Muslim marriages,” the CGE said in a statement on Saturday.

Judge Siraj Desai ruled on Friday that the president and his cabinet had failed in their duty to uphold the constitution.

The CGE [The Commission for Gender Equality], represented by the Legal Resources Centre as Amicus Curiae (Friend of the Court), said they welcomed the judgment.

“Our intervention was in support of the case as we firmly believe that Muslim women have suffered and continue to suffer serious prejudice in marriages as a result of the State’s inaction,” the CGE said.

Desai directed that the president and Cabinet, together with Parliament, “rectify the failure within 24 months of the date of this order as contemplated”.

There are also provisions in place should the state fail to act on the order within the next two years.

Desai said that, should legislation not be enacted within the next two years, it is declared that a union, validly concluded as a marriage in terms of Sharia law and which subsists at the time that the order becomes operative, may be dissolved in accordance with the Divorce Act and that all provisions of that act be applicable.

The court also made provisions for the dissolution of polygamous marriages in a Muslim marriage.

There are those who have opposed the ruling, including The Society for the Protection of our Constitution, have argued that the order is “arbitrary, irrational and nonsensical”.

The society said the judgment had worsened the position of Muslim women, and that Sharia law did not recognise the concept of marriage as a “union between two people”, but rather the concept of a ‘nikaah’.

“Shariah recognizes a nikaah – which is a union between male and female. A nikaah is terminated by the pronouncement of a talaq communicated by the male to the female. There is no provision in shariah for dissolution of a nikaah by a female. The female in a nikaah cannot terminate the nikaah.

“The Divorce Act 70 of 1979 clothes the court exclusively to dissolve a marriage by a decree of divorce. There is no provision in the Divorce Act to dissolve a union without decreeing/ making an order of divorce. It is not competent by law for a court acting under the Divorce Act to dissolve a nikaah that has ended by talaq,” the society said in a statement.

Before the judgement was delivered, Muslim women obtained interim relief that allowed them to secure maintenance and custody over their children.

The order shuts the doors to Muslim women from obtaining interim relief because a court may only dissolve a nikaah that has already been terminated in terms of Sharia, according to the society.

The society also had an issue with the time limit to implement the order, claiming it could not be done in a “mere” 24 months “when the courts themselves could not do so in more than 10 years”.

South Africa will have to recognise the basics of Sharia law, nikah, as the law remains undefined in South African law.

There are also questions as to the implications of State intervention in religious practices, especially with regard to the constitutional protection of religious freedom.

Muslim women gathered outside the High Court to show their support for the new legislation.

[source:news24]