Muslim marriages

Since 30 April 2014 Muslim marriages enjoy legal status in South Africa.

Muslim marriages were previously not afforded recognition, protection or regulation in terms of the South African law.  This had devastating effects on especially female spouses with regard to claims for maintenance and intestate inheritance, children were regarded as illegitimate and a prejudicial situation existed in respect of patrimonial regimes, divorces and property distribution upon dissolution of the marriage.

The cases of Daniels v Campbell NO and Others 2004 (5) SA 331(CC) and Hassam v Jacobs NO and Others 2009 (5) SA 572 (CC) drew attention to the effect of the non-recognition of Muslim marriages.

Mrs. Daniels married her husband by Muslim rites in 1977.  The marriage, which was at all times monogamous, was not solemnised by a marriage officer appointed in terms of the marriage Act 25 of 1961.  Mr. Daniels passed away in 1994 without a will.  The Master held that she could not inherit from his estate because she was not recognized as a surviving spouse.  This meant that Mrs. Daniels was going to lose a house she owned which was registered in her deceased husband’s name.  The High Court upheld the Master’s decision but also held that certain provisions of the Maintenance Act and the Intestate Succession Act  were unconstitutional for their failure to recognise as "spouses" persons married according to Muslim rites.  An application was made to the Constitutional Court for confirmation of the order and therefore to allow partners in Muslim marriages to benefit from their protections, which include the provision of relief to widows to ensure that they receive at least a child's share of their husbands' estates.  In terms of the Maintenance of Surviving Spouses Act, certain benefits are conferred on “spouses,” a term which did not include spouses in a de facto monogamous Muslim marriage.  The Constitutional Court held that the word "spouse," in its ordinary meaning, should include parties to a Muslim marriage, because this corresponds to the way the word is generally understood and used, and because it would be far more awkward from a linguistic point of view to exclude Muslim partners than to include them.

Mrs. Hassam could also not inherit from her late husband’s estate.  She was married to him in accordance with Muslim rites.  However, without her knowledge he had married a second wife, Mrs. Mariam Hassam, also according to Muslim rites.  Mr. Hassam died intestate in August 2001.  His death certificate shows that he was never married.  The first respondent as executor of his estate refused to regard Mrs. Hassam as a spouse for the purposes of the Intestate Succession Act 81 of 1987.  He questioned the validity of her marriage to the deceased.  She took the matter to Court and was also eventually successful in the Constitutional Court.  The Court held that she was discriminated against on grounds of religion, marital status and gender and that her right to equality had been violated and that this was inconsistent with section 9 of the Constitution.  Accordingly, it was held that she could inherit from her late husband’s estate.  The ambit of this judgment extended the ruling in Daniels v Campbell to polygamous Muslim marriages.

Recently, over a 100 Imams or Muslim clerics were appointed as marriage officers in terms of the Marriage Act 25 of 196.  A marriage union may now be officiated by an Imam who is registered as a marriage officer in terms of the Marriage Act.

A consequence of the current legislation is that unless spouses to a Muslim marriage specifically enter an ante-nuptial contract to exclude the community of property system, either with or without the accrual system, a Muslim marriage will otherwise be deemed to be in community of property.

In conclusion, as the wedding party plans the Nikah (wedding ceremony), it is advisable to consult with a legal practitioner to discuss the preferred proprietary system and legal consequences most appropriate for the Muslim couple.

By Clarise Haasbroek

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