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5.1 The ideal method of legally enforcing Muslim Personal Law is through the establishment of separate Shari’ah courts, presided over by competent Qadis (or judges), who are expert jurists in Islamic law.
5.2 This option is not feasible[17] at this stage having regard, inter alia, to limited state resources, and the fact that separate dispute resolution institutions cannot be provided for our country’s many religions.
5.3 As an alternative to separate Shari’ah courts, it is proposed that aspects of Muslim Personal Law be implemented through the secular courts.
5.4 Because the judges of our secular courts are by and large non-Muslims, it is proposed that, in the adjudication of disputes relating to Muslim Personal Law, a judge be assisted by two assessors who are experts in Islamic Law.
5.5 The assessors will have the power, together with the judge, to determine disputes of fact and law, and the decision of the majority shall represent a decision of the court.
5.6 A decision of the court would be subject to appeal, in the usual way, to a higher court. It is envisaged that indigent Muslims will be entitled to state funded legal aid in matrimonial matters.
5.7 The appointment of assessors means that the court presiding over a dispute involving Islamic Law would have the necessary expertise in Islamic Law to resolve such dispute effectively.
5.8 Where a wife applies for a dissolution of her marriage, on defined grounds, in the form of a Faskh[18], the decree would be pronounced, in addition, by the two Muslim assessors. This resolves the debate as to whether a non-Muslim Judge has the power, acting on his or her own, to dissolve a marriage, as a decree of Faskh, on the application of the wife on a ground recognised by Islamic Law (eg: the failure of the husband to maintain his wife).
5.9 The provisions relating to assessors are contained in clause 13 of the draft Bill.
5.10 The proposed Bill draws a clear distinction between an Islamic marriage and a civil marriage. It is only Islamic marriages that fall within the ambit of the proposed Bill. They are treated on par with civil marriages. Proprietary consequences are regulated. Provision is made for changes to matrimonial property systems, with due regard to existing and vested rights. Provision is also made to regulate polygamous marriages.
5.11 The proposed Bill recognises as a valid marriage, an Islamic marriage or marriages contracted in accordance with Islamic Law only (and not registered under the Marriage Act as a civil marriage).
5.12 All existing Islamic marriages would accordingly be recognised as valid marriages, for all purposes, upon the commencement of the proposed legislation. This would cover both monogamous and polygamous Islamic marriages which, if applicable, may exist alongside an existing civil marriage.
5.13 In the case of an existing registered civil marriage, therefore, the parties thereto are presumed to intend the civil consequences to apply to their marriage, hence the civil marriage would fall outside the ambit of the proposed Bill, but subject to paragraph 5.14 below.
5.14 Where the parties to an existing civil marriage, however, wish to cause the provisions of the proposed Bill to apply to their marriage, they are free to do so at any time after the commencement of the statute. Appropriate regulations would be formulated to enable both spouses to an existing civil marriage to adopt the provisions of the proposed Act by means of an appropriate declaration.
5.15 In short, therefore, the proposed legislation would apply retrospectively by validating all Islamic marriages which exist, at the commencement thereof, as valid marriages for all purposes upon such commencement.
5.16 As regards Islamic Marriages contracted after the commencement of the proposed Bill, a distinction must be drawn between monogamous and polygamous Islamic marriages.
5.17 In relation to monogamous Islamic Marriages, these would enjoy recognition as valid marriages, provided the requirements set out in clause 5 of the proposed Bill are complied with. These relate primarily to the minimum marriageable age, and consent of the prospective spouses.
In relation to the situation where a husband in an existing Islamic marriage wishes, after the commencement of the proposed statute, to conclude a further Islamic marriage, then the provisions of clause 8(7) of the proposed Bill apply. It is well established in Islamic Law that polygamy is circumscribed. The legislature is permitted in Islamic Law to regulate polygamy to ensure that it does not lead to abuse, hardship, and oppression of women.[19] It is therefore proposed that a judge sitting with two Muslim assessors should objectively decide whether the husband, in all the circumstances, is able to exercise justice between his spouses as defined in the Holy Qur’an itself. At the same time, it is necessary to ensure that the proprietary consequences of the existing and proposed marriages are properly regulated to avoid prejudice to existing spouses, and avoid future disputes.
Requirements for validity of Islamic marriages: clause 5 of the Bill
5.19 These provisions relate essentially to the minimum age of marriage and the question of consent.
5.20 The minimum age is proposed at 18 years, and this appears to be accepted by the majority of the respondents to the Issue Paper.
5.21 Should a prospective spouse be under the age of 18 years, provision is made in clause 5(5) for permission to marry to be granted by the Minister or a recognised body or person authorised by him or her.
5.22 The provisions relating to the registration of Islamic Marriages are contained in clause 6 of the Bill.
5.23 These provisions, which include the requirements set out in section 12 of the Marriage Act, ensure certainty, thereby avoiding or minimising disputes.
5.24 The provisions cover the registration of Islamic marriages existing at the commencement of the Bill, and those concluded after the commencement thereof.
5.25 It is envisaged that, after the commencement of the Bill, Islamic marriages be registered at the time of the contracting thereof. This can easily be done if all persons presently involved in connection with the conclusion of Islamic marriages be registered as marriage officers.
5.26 The position under Islamic Law is that the conclusion of a marriage per se, results in the marriage being automatically out of community of property, with all forms of profit sharing being excluded. This, however, does not prevent the spouses from entering into a contractual arrangement in terms of which they may mutually agree to enter into an acceptable partnership or proprietary arrangement.[20]
5.27 Consistent with the Islamic Law position, all existing Islamic marriages, at the commencement of the proposed statute are deemed to be out of community of property (clause 8(1)).
5.28 The same applies to Islamic marriages concluded after the commencement of the Act, unless otherwise regulated contractually by the spouses (clause 8(2)).
5.29 Provision is made for spouses to change the matrimonial property system in respect of an Islamic marriage concluded before or after the commencement of the proposed Act (clause 8(3)). This is in line with section 21 of the Matrimonial Property Act, 1984. Those civic bodies involved in family matters are free to conduct public educational programs concerning the Bill, and to publicise various property regimes.
5.30 The dissolution of an Islamic marriage is now recognised.
5.31 Provision is made to register an irrevocable Talaq[21] immediately but not later than seven days from the pronouncement or issue thereof. This will ensure certainty, and at the same time will assist in avoiding situations where the husband issues the Talaq arbitrarily, to the detriment of his wife and any children.
5.32 A Talaq issued and properly registered, whilst effective, must be confirmed by the Court. The confirmation process will ensure that issues such as maintenance, proprietary arrangements, the welfare of minor children, etc is properly regulated and safeguarded, thereby leading to certainty and the avoidance of acrimony and abuse. It is crucial that all the issues arising from a dissolution of the marriage are properly resolved, for the benefit of all concerned, hence the need for a decree of confirmation together with ancillary relief.
5.33 Provision is made in clause 9(3) for the Court to grant a decree of Faskh, being a dissolution of the marriage, on defined grounds recognised by Islamic Law. This is a pivotal provision and substantially empowers women in accordance with Islamic tenets. The husband may pronounce a Talaq. He may delegate this right to his wife in the form of a Tafwid ul Talaq[22]. Where the husband has not delegated this right and refuses to pronounce a Talaq, the wife may on application to court and upon notice, seek a dissolution of the marriage, if there are grounds therefor, as defined in clause 1 of the Bill (in the definition of Faskh).
5.34 The guidelines laid down by Muslim jurists relating to the custody of, and access to, minor children are based on the welfare of minor children as the paramount consideration.
5.35 This is also consistent with section 28(2) of the Bill of Rights which provides that -
A child’s best interests are of paramount importance in every matter concerning the child.
The Divorce Act, other relevant statutory provisions, and the common law are to the same effect.
5.36 Clause 11, therefore, whilst providing that a child’s best interests[23] are paramount in matters of custody and access, takes into account the age limits and guidelines furnished by Muslim jurists in this regard.
5.37 In Islamic Law, the husband is obliged to support his wife and children. These Islamic principles are embodied in clause 12(2), and would provide substantial relief to spouses and children of Islamic marriages.
5.38 These maintenance obligations would be enforced through the Maintenance Act, 1998. Chapter 5 of this Act gives the Maintenance Court substantial powers to enforce maintenance orders by execution against property, by the attachment of emoluments and by the attachment of debts, having the effect of a civil judgment. At the same time, the failure to make payment in accordance with a maintenance order constitutes an offence and is penalised as set out in Chapter 6 of the Act.
5.39 Clause 14 has been specifically inserted to deal with an existing civil marriage as defined in clause 1 of the Bill. It is imperative that the accompanying Islamic marriage is dissolved prior to the dissolution of the civil marriage itself in terms of the Divorce Act. The failure to regulate this, could result in a situation where the existing civil marriage is dissolved, but the accompanying Islamic marriage remains in existence. This would obviously cause serious hardship to the wife, as she would be precluded from remarrying until her husband gives her a Talaq. Clause 14 ensures that both the existing civil and accompanying Islamic marriages are dissolved at almost the same time.
5.40 A comprehensive overview of the Islamic law of succession is beyond the brief of the project committee. However, provision has been made to amend the Intestate Succession Act 81 of 1987 by broadening the definition of a “spouse” to cover the spouse/s of an Islamic marriage (see clause 16). A corresponding amendment has been made to the Maintenance of Surviving Spouses Act 27 of 1990. This will alleviate the hardships endured by Muslim spouses who in the past have not enjoyed such recognition.
[17] According to the 1996 population census the population of Muslims in South Africa was recorded at 553 585 out of a total population of 40,5 million.
[18] A Faskh means a decree of dissolution of the marriage granted by a judge upon the application of the wife upon recognised grounds, such as the husband’s failure to maintain his wife. A decree of Faskh has the effect of dissolving the marriage immediately. It must be distinguished from a Talaq which is the right of the husband to terminate the marriage and which is referred to in footnote 21.
[19] This appears to be the consensus of contemporary Shari’ah experts eg, the well-known khalif umar (Ra) regulated marriages and divorces.
[20] Islamic Law recognises different types of partnership arrangements that may be concluded between spouses. A mufaawadah partnership concluded between the spouses means that existing and future assets would be owned in equal shares between the spouses, who would be jointly and severally liable to creditors. An Inan partnership, on the other hand, would permit the spouses to enter into a profit sharing arrangement in respect of future and present property, by mutual agreement. Community of property, per se, as a concept is unknown in Islamic law. The spouses may also separately enter into a pre-nuptial contract upon defined terms and conditions which are not contrary to the essence of the marriage contract itself. For example, the marriage contract may contain a provision to the effect that, in the event of the husband electing to conclude a second Islamic marriage, the existing wife shall be entitled (but not obliged) to apply for the dissolution of her own marriage. The Hanbali school of interpretation grants a wide latitude in respect of conditions that may be agreed upon by spouses in a pre-nuptial contract. (See the famous authoritative juristic work Almugni by Ibn Qudamah)
[21] A Talaq pronounced by a husband is of two types: revocable and irrevocable. In the case of the revocable Talaq (Raj’i), the marriage is not dissolved immediately upon pronouncement thereof but subsists until the expiry of the waiting period (Iddah). The marriage is only dissolved upon the expiry of the Iddah, with the result that the husband may take the wife back prior to the expiry of the Iddah, without concluding a fresh marriage contract. On the other hand, where the Talaq is pronounced in irrevocable form (Ba’in), the marriage is dissolved immediately, with the result that the husband has no right to take the wife back unless the former spouses conclude a fresh marriage contract.
[22] A delegation of the husband’s power of Talaq to the wife may be absolute or conditional, with the result that, depending on the terms of the delegation, the wife may terminate the marriage by pronouncing a Talaq. Despite this delegation, the husband at all material times, retains his original right to terminate the marriage through the pronouncement of a Talaq, and never loses that right.
[23] In interpreting what is in the best interests of a child, it may be necessary to take into account appropriate criteria from an Islamic perspective. These criteria could serve as guidelines for the family advocate and judges in dealing with custody cases.
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