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To make provision for the recognition of Islamic marriages; to specify the requirements for a valid Islamic marriage; to regulate the registration of Islamic marriages; to recognise the status and capacity of spouses in Islamic marriages; to regulate the proprietary consequences of Islamic marriages; to regulate the dissolution of Islamic marriages and the consequences thereof; to provide for the making of regulations; and to provide for matters connected therewith.
Definitions
1. In this Act, unless the context otherwise indicates-
(i) “court” means a High Court of South Africa, or a Family Court established under any law, and for purposes of section 9, a Divorce Court established in terms of section 10 of the Administration Amendment Act, 1929 (Act No. 9 of 1929). The provisions of section 2 of the Divorce Act, 1979 (Act No. 70 of 1979), shall, with the necessary changes, apply in respect of the jurisdiction of a court for the purposes of this Act;
(ii) “deferred dower” means the dower or part thereof which is payable on an agreed future date but which, in any event, becomes due and payable upon dissolution of the marriage by divorce or death;
(iii) “dispute,” for the purposes of section 13, means a dispute or an alleged dispute relating to the interpretation or application of any provision of this Act or any applicable law;
(iv) “dower” means the money or property which must be payable by the husband to the wife as an ex lege consequence of the marriage itself in order to establish a family, and lay the foundations for affection and companionship;
(v) “existing civil marriage” means an existing marriage contracted according to Islamic Law which has also been registered and solemnized in terms of the Marriage Act,1961 (Act No. 25 of 1961), prior to the commencement of this Act, and in relation to which the parties may elect in the prescribed manner at any time after the date of commencement of this Act, to cause the provisions of this Act to apply to their marriage, in which event the provisions of this Act apply from the date of such election, but without affecting vested proprietary rights (unaffected by such election) and the rights of third parties including creditors;
(vi) “Faskh” means a decree of dissolution of marriage granted by a court, upon the application of the wife, on any ground or basis permitted by Islamic Law, and including any one or more of the following grounds, namely, where the -
(a) husband is missing, or his whereabouts are not known, for a substantial period of time;
(b) husband fails for any reason to maintain his wife;
(c) husband has been sentenced to imprisonment for a period of three years or more, provided that the wife is entitled to apply for a decree of dissolution within a period of one year as from the date of sentencing;
(d) husband is mentally ill, or in a state of continued unconsciousness as contemplated by section 5 of the Divorce Act, 1979 (Act No. 70 of 1979) which provisions shall apply, with the changes required by the context;
(e) husband suffers from a serious disease, including impotency, which renders cohabitation intolerable;
(f) husband treats his wife with cruelty in any form, which renders cohabitation intolerable;
(g) husband has failed, without valid reason, to perform his marital obligations for a reasonable period;
(h) husband is a spouse in more than one Islamic marriage, he fails to treat his wife justly in accordance with the injunctions of the Qur’an; or
(i) marriage has irretrievably broken down, despite reasonable attempts at reconciliation;
(vii) “Iddah” means the mandatory waiting period for the wife, arising from the dissolution of the marriage by divorce or death during which period she may not remarry. The Iddah of a divorced woman who -
(a) menstruates is three such menstrual cycles;
(b) does not menstruate for any reason, is three months;
(c) is pregnant, extends until the time of delivery;
(viii) “irrevocable Talaq” means -
(a) a Talaq pronounced by a husband which becomes irrevocable only upon the expiry of the Iddah, thereby terminating the marriage upon the expiry thereof;
(b) according to the Hanafi School of Interpretation, a Talaq expressed to be irrevocable (Bai’n) at the time of pronouncement, thereby terminating the marriage immediately;
(c) the pronouncement of a third Talaq;
(ix) “Islamic marriage” means a marriage contracted in accordance with Islamic law only, but excludes an existing civil marriage, or a civil marriage solemnized under the Marriage Act, 1961 (Act No. 25 of 1961), before or after the date of commencement of this Act;
(x) “Khul’a” means the dissolution of the marriage bond, at the instance of the wife, in terms of an agreement between the spouses according to Islamic Law;
(xi) “marriage officer” means any Muslim person with knowledge of Islamic Law appointed as marriage officer for purposes of this Act by the Minister or an officer acting under the Minister's written authorisation;
(xii) “Minister” means the Minister of Home Affairs;
(xiii) “prescribed” means prescribed by regulation made under section 15;
(xiv) “prompt dower” means the dower or part thereof which is payable at the time of conclusion of the marriage or immediately thereafter upon demand by the wife;
(xv) “revocable Talaq” means a Talaq (“Raj’i”) which does not terminate the marriage before the completion of the Iddah, and which confers upon the husband the right to take back his wife before the expiry of the Iddah only;
(xvi) “Tafwid ul Talaq” means the delegation by the husband of his right of Talaq to the wife, either at the time of conclusion of the marriage or during the subsistence of the marriage, so that the wife may terminate the marriage by pronouncing a Talaq strictly in accordance with the terms of such delegation;
(xvii) “Talaq” means the termination of the marriage according to Islamic Law, by the husband or his agent or intermediary, through the use or pronouncement of specific words which indicate a clear intention to terminate the marriage; and includes the Tafwid ul Talaq;
(xviii) “this Act” includes the regulations.
Application of this Act
2. The provisions of this Act -
(a) shall apply to an Islamic marriage contracted before or after the commencement of this Act;
(b) shall apply to an existing civil marriage insofar as the spouses thereto have elected in the prescribed manner to cause the provisions of this Act to apply to the consequences of their marriage, and otherwise to the extent specified in section 14; and
(c) does not apply to a civil marriage solemnised under the Marriage Act, 1961 (Act No. 25 of 1961) before or after the commencement of this Act.
Equal status and capacity of spouses
3. A wife in an Islamic marriage is equal to her husband in human dignity and has, on the basis of equality, full status, capacity and financial independence, including the capacity to own and acquire assets and to dispose of them, to enter into contracts and to litigate.
Islamic marriages
4. (1) An Islamic marriage entered into before the commencement of this Act and existing at the commencement of this Act is for all purposes recognised as a valid marriage.
(2) An Islamic marriage entered into after the commencement of this Act, which complies with the requirements of this Act, is for all purposes recognised as a valid marriage.
(3) If a husband is a spouse in more than one Islamic marriage, all Islamic marriages entered into by him before the commencement of this Act, are for all purposes recognised as valid marriages.
(4) If a husband is a spouse in more than one Islamic marriage, all such marriages entered into after the commencement of this Act, which comply with the provisions of this Act, are for all purposes recognised as valid marriages.
(5) If a husband is a spouse in an existing civil marriage, and in an Islamic marriage or marriages entered into before the commencement of this Act, such Islamic marriage or marriages are for all purposes recognised as valid marriages.
Requirements for validity of Islamic marriages
5. (1) For an Islamic marriage entered into after the commencement of this Act to be valid the prospective spouses-
(a) must both have attained the age of 18 years, and
(b) must both consent to be married to each other.
(2) No spouse in an Islamic marriage recognised in terms of this Act may, after the commencement of this Act, enter into a marriage under the Marriage Act, 1961 (Act No. 25 of 1961) during the subsistence of such Islamic marriage.
(3) If either of the prospective spouses is a minor, both his or her parents, or if he or she has no parents, his or her guardian, must consent to the marriage.
(4) If the consent of the parent or guardian as referred to in subsection (3) cannot be obtained, the provisions of section 25 of the Marriage Act, 1961, applies.
(5) Despite the prohibition in subsection (1)(a), the Minister or any person or body authorised in writing thereto by him or her, may grant written permission to a person under the age of 18 years to enter into an Islamic marriage if the Minister or the said person or body considers such marriage desirable and in the interests of the parties in question.
(6) Permission granted in terms of subsection (5) shall not relieve the parties to the proposed marriage from the obligation to comply with any other requirements prescribed by law.
(7) If a person under the age of 18 years has entered into an Islamic marriage without the written permission of the Minister or person or body authorised by him or her, the Minister or such person or body may, if he, she or it considers the marriage to be desirable and in the interests of the parties in question, and if the marriage was in every other respect in accordance with this Act, declare the marriage in writing to be, for all purposes, a valid Islamic marriage.
(8) Subject to the provisions of subsections (5) and (6), section 24A of the Marriage Act, 1961, applies to the Islamic marriage of a minor entered into without the consent of a parent, guardian, commissioner of child welfare or a judge, as the case may be.
(9) The prohibition of an Islamic marriage between persons on account of their relationship by blood or affinity or fosterage, or any other reason, is determined by Islamic law.
Registration of Islamic marriages
6. (1) An Islamic marriage -
(a) entered into before the commencement of this Act, must be registered within a period of 12 months after that commencement or within such longer period as the Minister may from time to time prescribe by notice in the Gazette; or
(b) entered into after the commencement of this Act, must be registered as prescribed at the time of the conclusion of the marriage or within such longer period as the Minister may from time to time prescribe by notice in the Gazette.
(2) It shall be the duty of the parties to the marriages contemplated in paragraphs (a) and (b) of subsection (1) to cause such marriages to be registered.
(3) No marriage officer shall register any marriage unless –
(a) each of the parties in question produces to the marriage officer his or her identity document issued under the provisions of the Identification Act, 1986 (Act No. 71 of 1986);
(b) each of such parties furnishes to the marriage officer the prescribed affidavit; or
(c) one of such parties produces his or her identity document referred to in paragraph (a) to the marriage officer and the other furnishes to the marriage officer the affidavit referred to in paragraph (b).
(4) The marriage officer must –
(a) if satisfied that the spouses concluded a valid Islamic marriage, record the identity of the spouses, the date of the marriage, the Dower agreed to, whether payable immediately or deferred in full or part, and any other particulars prescribed, and must register the marriage in accordance with this Act and the regulations as prescribed;
(b) issue to the spouses a certificate of registration, bearing the prescribed particulars; and
(c) forthwith transmit the relevant records to a regional or district representative designated as such under section 21(1) of the Identification Act, 1986.
(5) An Islamic marriage shall be contracted in accordance with the formulae prescribed in Islamic law, including Tazawwajtuha and Nakahtuha (“I have married her”). Such a marriage shall be concluded by the parties or their proxies in the presence of a marriage officer. A marriage officer in so concluding an Islamic marriage shall, after the commencement of this Act, cause such marriage to be registered in accordance with the provisions of subsection (4).
(6) If for any reason an Islamic marriage has not been registered, any person who satisfies a marriage officer that he or she has a sufficient interest in the matter may apply to the marriage officer in the prescribed manner to enquire into the existence of the marriage.
(7) If the marriage officer is satisfied that a valid Islamic marriage exists or existed between the spouses, he or she must register the marriage and issue a certificate of registration as contemplated in subsection (4).
(8) If the marriage officer is not satisfied that a valid Islamic marriage was entered into by the spouses, he or she must refuse to register the marriage.
(9) A court may, upon application made to that court, order -
(a) the registration of any Islamic marriage; or
(b) the cancellation or rectification of any registration of a Islamic marriage effected by a marriage officer.
(10) A certificate of registration of an Islamic marriage issued under this section or any other law providing for the registration of Islamic marriages constitutes prima facie proof of the existence of the Islamic marriage and of the particulars contained in the certificate.
(11) Failure to register an Islamic marriage does not, by itself, affect the validity of that marriage.
Proof of age of parties to proposed marriage
7. If parties appear before a marriage officer for the purpose of contracting a marriage with each other and such marriage officer reasonably suspects that either of them is of an age which debars him or her from contracting a valid marriage without the consent or permission of some other person, he may refuse to solemnize a marriage between them unless he is furnished with such consent or permission in writing or with satisfactory proof showing that the party in question is entitled to contract a marriage without such consent or permission.
Proprietary consequences of Islamic marriages and contractual capacity of spouses
8. (1) An Islamic marriage entered into before or after the commencement of this Act shall be deemed to be a marriage out of community of property, unless the proprietary consequences governing the marriage are regulated, by mutual agreement of the spouses, in an ante-nuptial contract which shall be registered in the Deeds Registry –
(a) in the case of a marriage entered into before the commencement of this Act, within six months from the date of commencement of this Act; and
(b) in the case of a marriage entered into after the commencement of this Act, within six months from the date of execution of the contract
or within such extended period as the court may on application allow.
(2) Notwithstanding any provision to the contrary contained in any other law, an ante-nuptial contract referred to in subsection (1) need not be attested by a notary.
(3) Spouses in an Islamic marriage entered into before or after the commencement of this Act may jointly apply to a court for leave to change the matrimonial property system, which applies to their marriage or marriages and the court may, if satisfied that -
(a) there are sound reasons for the proposed change;
(b) sufficient written notice of the proposed change has been given to all creditors of the spouses for amounts exceeding R500 or such amount as may be determined by the Minister of Justice by notice in the Gazette; and
(c) no other person will be prejudiced by the proposed change,
order that the matrimonial property system applicable to such marriage or marriages will no longer apply and authorise the parties to such marriage or marriages to enter into a written contract in terms of which the future matrimonial property system of their marriage or marriages will be regulated on conditions determined by the court.
(4) In the case of a husband who is a spouse in more than one Islamic marriage, all persons having a sufficient interest in the matter, and in particular the husband’s existing spouse or spouses, must be joined in the proceedings.
(5) Where the husband is a spouse in an existing civil marriage, and in an Islamic marriage, all his existing spouse or spouses must be joined in such proceedings.
(6) A husband in an Islamic marriage who wishes to enter into a further Islamic marriage with another woman after the commencement of this Act must make an application to the court for permission to do so, and to approve a written contract which will regulate the future matrimonial property system of his marriages.
(7) When considering the application in terms of subsection (6), the court may -
(a) grant permission on the basis of Islamic law if the court is satisfied that -
(b) in the case of an existing marriage which is in community of property or which is subject to the accrual system -
(i) terminate the matrimonial property system which is applicable to that marriage; and
(c) make such order in respect of the prospective estate of the spouses concerned as is mutually agreed, or, failing any agreement, the marriage shall be deemed to be out of community of property, unless the court for compelling reasons decides otherwise;
(d) grant the order subject to any condition it may deem just, or refuse the application if in its opinion the interests of any of the parties involved would not be sufficiently safeguarded by means of the proposed contract.
(8) All persons having a sufficient interest in the matter, and in particular the applicant's existing spouse or spouses and his prospective spouse, must be joined in the proceedings instituted in terms of subsection (6).
(9) If a court grants an application contemplated in subsections (3) or (6), the registrar or clerk of the court, as the case may be, must furnish each spouse with an order of the court including a certified copy of such contract and must cause such order and a certified copy of such contract to be sent to each registrar of deeds of the area in which the court is situated.
(10) A husband who enters into a further Islamic marriage, whilst he is already married, without the permission of the court, in contravention of subsection (6) shall be guilty of an offence and liable on conviction to a fine not exceeding R50 000.
Dissolution of Islamic marriages
9. (1) Notwithstanding the provisions of section 3(a) of the Divorce Act, 1979, (Act No. 70 of 1979), or anything to the contrary contained in any law or the common law, an Islamic marriage may be dissolved on any ground permitted by Islamic Law. The provisions of this section shall also apply, with the changes required by the context, to an existing civil marriage insofar as the parties thereto have in the prescribed manner elected to cause the provisions of this Act to apply to the consequences of their marriage.
(2) In the case of Talaq the following shall apply:
(a) The husband shall be obliged to cause an irrevocable Talaq to be registered immediately, but in any event, by no later than seven days after its pronouncement, with a marriage officer, in the presence of the wife or her duly authorised representative and two competent witnesses.
(b) If the presence of the wife or her duly authorised representative cannot be secured for any reason, then the marriage officer shall register the irrevocable Talaq only in the event that the husband satisfies the marriage officer that due notice in the prescribed form of the intended registration was served upon her by the sheriff or by substituted service.
(c) The provisions of paragraphs (a) and (b) shall apply, with the changes required by the context, where the husband has delegated to the wife the right of pronouncing a Talaq, and the wife has pronounced an irrevocable Talaq (Tafwid ul Talaq).
(d) Any spouse who knowingly and wilfully fails to register the irrevocable Talaq in accordance with this subsection shall be guilty of an offence and liable on conviction to a fine not exceeding R50 000.
(e) If a spouse disputes the validity of the irrevocable Talaq, according to Islamic Law, the marriage officer shall not register the same, until the dispute is resolved, if the marriage officer is of the opinion that the dispute relating to the validity of the irrevocable Talaq is not frivolous or vexatious and has otherwise been fairly raised.
(f) A spouse shall, within fourteen days, as from the date of the registration of the irrevocable Talaq institute legal proceedings in a competent court for a decree confirming the dissolution of the marriage by way of Talaq. The action, so instituted, shall be subject to the procedures prescribed from time to time by the applicable rules of court. This does not preclude a spouse from seeking the following relief -
(i) an application pendente lite for an interdict or for the interim custody of, or access to, a minor child of the marriage concerned or for the payment of maintenance; or
(ii) an application for a contribution towards the costs of such action or to institute such action, or make such application, in forma pauperis, or for the substituted service of process in, or the edictal citation of a party to, such action or such application.
(g) An irrevocable Talaq taking effect as such prior to the commencement of this Act shall not be required to be registered in terms of the provisions of this Act.
(3) A court must grant a decree of divorce in the form of a Faskh on any ground which is recognised as valid for the dissolution of marriages under Islamic Law, including the grounds specified in the definition of Faskh in section 1. The wife shall institute action for a decree of divorce in the form of Faskh in a competent court, and the procedure applicable thereto shall be the procedure prescribed from time to time by rules of court, including appropriate relief pendente lite, referred to in subsection (2)(f). The granting of a Faskh by a court shall have the effect of an irrevocable Talaq.
(4) The spouses who have effected a Khul’a shall personally and jointly appear before a marriage officer and cause same to be registered in the presence of two competent witnesses. The marriage officer shall register the Khul’a as one irrevocable Talaq, in which event the provisions of subsection (2)(f) will apply with the changes required by the context.
(5) In the event of a dispute between the spouses with regard to the amount of compensation in the case of Khul’a, the court may fix such amount as it deems just and equitable having regard to all relevant factors.
(6) The Mediation in Certain Divorce Matters Act, 1987 (Act No. 24 of 1987) and sections 6(1) and (2) of the Divorce Act, 1979 (Act No. 70 of 1979), relating to safeguarding the welfare of any minor or dependent child of the marriage concerned, apply to the dissolution of an Islamic marriage under this Act.
(7) A court granting or confirming a decree for the dissolution of an Islamic marriage -
(a) has the powers contemplated in sections 7(1), 7(7) and 7(8) of the Divorce Act, 1979, and section 24(1) of the Matrimonial Property Act, 1984 (Act No. 88 of 1984);
(b) may, if it deems just and equitable, on application by one of the parties to the marriage, and in the absence of any agreement between them regarding the division of their assets, order that such assets be divided equitably between the parties, where-
(i) a party has in fact assisted, or has otherwise rendered services, in the operation or conduct of the family business or businesses during the subsistence of the marriage; or
(ii) the parties have contributed, during the subsistence of the marriage, to the maintenance or increase of the estate of each other, or any one of them, to the extent that it is not practically feasible or otherwise possible to accurately quantify the separate contributions of each party.
(c) must, in the case of a husband who is a spouse in more than one Islamic marriage, take into consideration all relevant factors including the sequence of the marriages, any contract, agreement or order made in terms of section 8(3) and (7).
(d) may order that any person who in the court's opinion has a sufficient Interest in the matter be joined in the proceedings;
(e) may make an order with regard to the custody or guardianship of, or access to, any minor child of the marriage, having regard to the factors specified in section 11; and
(f) must, when making an order for the payment of maintenance, take into account all relevant factors.
Age of majority
10. For the purposes of this Act, the age of majority of any person is determined in accordance with the Age of Majority Act, 1972 (Act No. 57 of 1972).
Custody of and access to minor children
11. (1) In making an order for the custody of, or access to a minor child, the court shall at all times have regard to the welfare and best interests of the child as the paramount consideration.
(2) Unless the court directs otherwise having regard to the welfare and best interests of the child -
(a) the custody of a male child until he reaches the age of nine years, and the custody of a female child until she attains puberty shall vest in the mother of that child;
(b) the male child, when reaching the age of nine years, and the female child when attaining puberty, shall choose the parent with whom he or she wishes to be placed in custody;
(c) the non-custodian parent shall enjoy reasonable access to the child at regular intervals, but at least once a week.
(3) Despite subsection (2), but subject to subsection (1), the court shall deprive a parent of custody, or, otherwise, shall not grant custody to that parent, if the court is at any time of the opinion that the custody of the child by that parent –
(a) has exposed, or will expose, the child to circumstances which may seriously harm the physical, mental, moral, spiritual and religious well-being and development of the child;
(b) has resulted, or will result, in the child being in a state of physical or mental neglect for any reason.
(4) In the absence of both parents, or, failing them, for any reason, but subject to subsection (1), the court must, in awarding or granting custody of minor children, award or grant custody to such person as the court deems appropriate, in all the circumstances.
(5) An order in regard to the custody or access to a child, made in terms of this Act, may at any time be rescinded or varied, or, in the case of access to a child, be suspended by a court if the court finds that there is sufficient reason therefore: Provided that if an enquiry is instituted by the Family Advocate in terms of section 4(1)(b) of the Mediation in Certain Divorce Matters Act, 1987 (Act No. 24 of 1987), the court shall consider the report and recommendations of the Family Advocate concerning the welfare of minor children, before making the relevant order for variation, rescission or suspension, as the case may be.
Maintenance
12. (1) The provisions of the Maintenance Act, 1998 (Act No. 99 of 1998) shall apply, with the changes required by the context, in respect of the duty of any person to maintain any other person. Without derogating from the provisions of that Act, the following provisions shall apply:
(2) Notwithstanding the provisions of section 15 of the Maintenance Act, 1998, or, the common law, the maintenance court shall, in issuing a maintenance order, or otherwise in determining the amount to be paid as maintenance, take into consideration that –
(a) the husband is obliged to maintain his wife during the subsistence of an Islamic marriage according to his means and her reasonable needs;
(b) the father is obliged to maintain his male child until the age of majority, or, until he is able to become self-supporting, whichever is earlier, and he is obliged to maintain his female child until she is married;
(c) in the case of a dissolution by divorce of an Islamic marriage -
(i) the husband is obliged to maintain the wife for the mandatory waiting period of Iddah;
(ii) where the wife has custody in terms of section 11, the husband is obliged to maintain the wife, including the provision of separate residence, for the period of such custody only;
(iii) the wife shall be separately entitled to maintenance for a breastfeeding period of two years calculated from date of birth of an infant;
(iv) the husband’s duty to support a child born of such marriage includes the provision of food, clothing, separate accommodation, medical care and education.
(d) a major child is obliged to maintain his or her needy parents.
(3) Any amount of maintenance so determined shall be such amount as the maintenance court may consider fair and just in all the circumstances of the case.
(4) A maintenance order made in terms of this Act may at any time be rescinded or varied or suspended by a court if the court finds that there is sufficient reason therefor.
Assessors
13. (1) If any dispute is referred to a court for adjudication, the following provisions shall apply -
(a) the court shall be assisted by two Muslim assessors who shall have specialised knowledge of Islamic Law;
(b) the assessors shall be appointed by the Minister by proclamation in the Gazette and shall hold office for five years from the date of the relevant proclamation: Provided that the appointment of any such assessor may at any time be terminated by the Minister for any valid reason;
(c) any person so appointed shall be eligible for reappointment for such further period or periods as the Minister may think fit.
(2) The decision of the court on any question arising for decision before the court, shall be decided by the majority, and the court and the assessors shall give written reasons for their decision.
(3) Any decision of the court shall be subject to appeal in accordance with the applicable Rules of Court, save that the assessors shall participate in any application for leave to appeal, where such leave is necessary.
14. (1) In the event of a spouse to an existing civil marriage instituting a divorce action in terms of the Divorce Act, 1979 (Act No. 70 of 1979), after the commencement of this Act, the court shall not dissolve the civil marriage by the grant of a decree of divorce until the court is satisfied that the accompanying Islamic marriage has been dissolved.
(2) In the event of the husband refusing, for any reason, to pronounce an irrevocable Talaq, the wife to the accompanying Islamic marriage shall be entitled in the same proceedings to make an application for a decree of Faskh for the purposes of dissolving such Islamic marriage, in which event the provisions of this Act shall apply, with the changes required by the context.
(3) Where in addition to the existing civil marriage, the husband has concluded a further Islamic marriage or marriages registrable under this Act, the husband’s existing spouse or spouses must be joined in the divorce action contemplated in subsection (1).
Regulations
15. (1) The Minister of Justice, in consultation with the Minister, may make regulations -
(a) relating to -
(i) the requirements to be complied with and the information to be furnished to a Marriage officer in respect of the registration and dissolution of an Islamic marriage;
(ii) the manner in which a Marriage officer must satisfy himself or herself as to the existence or the validity of a Islamic marriage;
(iii) the manner in which any person may participate in the proof of the existence or in the registration of any Islamic marriage;
(iv) the form and content of certificates, notices, affidavits and declarations required for the purposes of this Act;
(v) the custody, certification, implementation, rectification, reproduction and disposal of any document relating to the registration of Islamic marriages or of any document prescribed in terms of the regulations;
(vi) any matter that is required or permitted to be prescribed in terms of this Act; and
(vii) any other matter which is necessary or expedient to provide for the effective registration of Islamic marriages or the efficient administration of this Act; and
(b) prescribing the fees payable in respect of the registration of an Islamic marriage and the issuing of any certificate in respect thereof.
(2) Any regulation made under subsection (1) which may result in financial expenditure for the State must be made in consultation with the Minister of Finance.
(3) Any regulation made under subsection (1) may provide that any person who contravenes a provision thereof or fails to comply therewith shall be guilty of an offence and on conviction be liable to a fine or to imprisonment for a period not exceeding one year.
Amendment of laws
16. (1) Section 17 of the Deeds Registries Act, 1937 (Act No. 47 of 1937), is hereby amended by the substitution for paragraph (b) of subsection (2) of the following paragraph:
“(b) where the marriage concerned is governed by the law in force in the Republic or any part thereof, state whether the marriage was contracted in or out of community of property or whether the matrimonial property system is governed by customary law in terms of the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998), or, is governed in terms of section 8 of the Islamic Marriages Act, 20.. .”
(2) Section 45bis of the Deeds Registries Act, 1937, is hereby amended -
(a) by the substitution for paragraph (b) of subsection (1) of the following paragraph:
“(b) forms or formed an asset in a joint estate, and a court has made an order, or has made an order and given an authorisation, under section 20 or 21(1) of the Matrimonial Property Act, 1984 (Act No. 88 of 1984), or under sections 8 or 9 of the Islamic Marriages Act, 20.. , or under section 7 of the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998), as the case may be, in terms of which the property, lease or bond is awarded to one of the spouses;” and
(b) by the substitution for paragraph (b) of subsection (1A) of the following paragraph:
“(b) forms or formed an asset in a joint estate and a court has made an order, or has made an order and given an authorisation under section 20 or 21(1) of the Matrimonial Property Act, 1984 (Act No. 88 of 1984), or under section 7 of the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 198), or under sections 8 or 9 of the Islamic Marriages Act, 20.. , as the case may be, in terms of which the property, lease or bond is awarded to both spouses in undivided shares;”.
(3) Section 1 of the Intestate Succession Act, 1987 (Act No. 81 of 1987) is hereby amended by the addition to subsection (4) of the following paragraph:
“(g) “spouse” shall include a spouse of an Islamic marriage recognised in terms of the Islamic Marriages Act, 20.. , and shall otherwise include the spouse of a deceased person in a union recognised as a marriage in accordance with the tenets of any religion: Provided that in the event of a deceased man being survived by more than one spouse, the following shall apply -
(i) for the purposes of subsection (1)(c), such surviving spouse shall inherit the intestate estate in equal shares;
“Marriage” shall include an Islamic marriage recognised in terms of the Islamic Marriages Act, 20.. , and shall otherwise include a union recognised as a marriage in accordance with the tenets of any religion.”
Short title and commencement
17. This Act is called the Islamic Marriages Act, 20.. , and comes into operation on a date fixed by the President by proclamation in the Gazette.
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