Anyone wanting to get married in South Africa has three legal options, all of which aim to protect the rights of the people saying, “I do.” Heterosexual couples can wed under the Marriage Act; for same-sex couples there is the Civil Union Act; and marriages conducted under customary law are protected by the Recognition of Customary Marriages Act.
But a significant number of marriages are conducted in religious ceremonies. South African law requires that any religious marriage be conducted by a registered marriage officer in order for the union to be solemnized under one of the country’s marriage laws. A purely religious marriage, one performed by an unregistered religious figure, has no legal status in South Africa.
That means that many of the estimated 750,000 Muslims in South Africa are in marriages that are not recognized by law. Women & Girls Hub spoke with Hoodah Abrahams-Fayker, attorney at the Women’s Legal Centre (WLC) in Cape Town, about what this absence of legal protection means for Muslim women and girls in South Africa and why the WLC is fighting for Muslim marriages to be legally recognized.
Women & Girls Hub: Why is there a need for specific recognition of Muslim marriages in law?
Hoodah Abrahams-Fayker: Many Muslim couples get married under religious ceremonies without the subsequent registration in terms of the Marriages Act. The legal literacy of most South Africans is low, and thus many couples are not aware of the benefits of legal protection, especially in terms of divorce.
Registering a Muslim marriage can be difficult. This is because, historically, only a few members of the Islamic clergy chose to become registered marriage officers. The government discriminated against Muslim people during apartheid and as a result, the Islamic clergy took a political and principled stand not to register as marriage officers as prescribed by the Marriages Act. They felt that this registration hindered their ability to practice their religion freely.
One of the key reasons we think legislation is required is to provide regulation of the divorce process. This will positively affect current challenges around inheritance, maintenance and the property rights of women. The WLC has seen thousands of cases where Muslim women do not have access to legal protection when they wish to divorce their husbands or when their husbands state that they wish to be divorced from them. To dissolve a marriage under Islamic law, the couple must approach the Islamic clergy. The clergy is comprised mainly of men and can be biased in favor of the husband. And there is no standardized regulation of how Islamic divorce proceedings should be heard. This has significant implications in terms of the allocation of property and the livelihoods of the children in Islamic marriages. Hence, many women do not get a fair divorce hearing.
The Recognition of Customary Marriages Act makes particular provisions for marriages conducted under customary law, applying to “those customs and usages traditionally observed among the indigenous African people of South Africa.” This recognition excludes those who are not “indigenous African people,” including those married religiously in Muslim, Hindu and Jewish weddings.
Women & Girls Hub: In terms of girls and young women, how would a law around Muslim marriages provide better protection?
Abrahams-Fayker: The Marriage Act requires that boys under the age of 18 and girls under the age of 15 cannot get married without special permission from their parents, a judge and the Minister of Home Affairs, and that all persons under the age of 21 must get their parents’ permission before marrying. These laws aim to protect young adults and to ensure that marriages take place between consenting adults.
But because Muslim marriages are not legally recognized, the Islamic clergy will often not report cases where marriages are under the legal age. South African statistics show that many more underage brides get married each year in South Africa than underage grooms, thus this particularly affects young women.
Because these marriages are not reported, there won’t be any government statistics on them. This means that our government statistics on underage and early marriage will not be accurate, and may be an underrepresentation of the extent of the issue.
Women & Girls Hub: Has the Women’s Legal Centre faced any opposition in its efforts to get better legal protection for Muslim women through a new law?
Abrahams-Fayker: There seems to be the misguided sense that the Muslim community does not support it, but in the WLC’s workshops with the Muslim community we find that when participants are informed about the benefits of legal protection, they are in support of it. Some small, very vociferous, groups have opposed the WLC’s application, but that does not equate to its rejection by the majority of Muslim people in South Africa.
The main concern of those opposing the law is that creating law specifically around Muslim marriages amounts to religious interference and singles out Islam. However, from the perspective of the WLC, the failure to provide protection in these marriages discriminates against Muslim women, and is therefore unconstitutional.
It has been more than a decade since the first version of the Muslim Marriages bill was introduced, and so the WLC has taken the government to court over these delays. The case will be heard in the High Court in Cape Town in March 2017.
Women & Girls Hub: In the interim, how is the WLC working to support women in Muslim marriages?
Abrahams-Fayker: The reality is that many Muslim women are not initially aware of how their rights in the South African legal context differ from those under Shariah law. In addition, few have the legal or financial resources to take up the matter of divorce outside of the Islamic clergy. The WLC continues to work in communities providing workshops on human rights, as well as providing free legal advice at our offices for any women who need it.
A positive recent development is that a number of Muslim marriage officers have been registered. However, this does not necessarily mean that more Muslim marriages are being solemnized both civilly and Islamically. There is still a need to raise public awareness and to make sure that marriage officers fulfill their legal duty and encourage couples to register their marriage.
In addition, although there is no law protecting Muslim women in divorce, there have been cases where women have taken their request for divorce to the courts and received favorable judgements. But a comprehensive legal remedy would be far more favorable.
This conversation was edited for length and clarity.