Advocate FATIMAH ESSOP, a PhD candidate at UCT, commences a new series on Muslim marriages with a discussion on the various options open to Muslims in South Africa when concluding a Muslim marriage.
‘And He has placed between you love and mercy…’
MUSLIM marriages are still not recognised as valid marriages within South African law and, currently, there is a case pending before the Cape High Court, which is holding government to task for its lack of enforcing legislation that recognises Muslim marriages.
In the interim however, those wishing to conclude Islamic marriages have various options available to them.
They could conclude a nikah ceremony with their local imam (who is not a registered marriage officer). In this scenario, the marriage is not recognised as a valid marriage under South African law.
Secondly, they could conduct two ceremonies – the nikah ceremony with their local imam (who is not a registered marriage officer) and then subsequently conclude a civil ceremony in terms of the Marriage Act of 1961 at the Department of Home Affairs.
In this scenario, the default matrimonial position would be in community of property unless the parties have stated otherwise or have concluded an ante-nuptial contract (an ANC).
Thirdly, they could conclude a dual ceremony, which simultaneously fulfils both the formal state legal requirements and the religious requirements of a nikah. Such a ceremony must be conducted by an imam who has been registered as a marriage officer in terms of the Marriage Act of 1961. In this scenario, the default position would also be in community of property unless the parties have stipulated otherwise or have concluded an ANC before their nikah ceremony.
In this article, I will focus only on the first option and its consequences. Options two and three will be discussed in later publications, Insha Allah.
Should parties decide on the first option, namely, the nikah ceremony by a local imam who is not a registered marriage officer, they will conclude their marriage through the conventional nikah ceremony before an imam in a masjid.
The parties will usually agree on a mahr (dower), which can be paid upfront or can be deferred. Although scholars are in disagreement on the minimum amount of dower that can be requested, there is no limit to the maximum dower a bride may request.
It is advisable to record the mahr agreed upon in writing before witnesses. Although historically in the Cape the mahr has usually been a symbolic amount, it is advisable to request an amount which can serve as security for the wife in the event of death or divorce.
A marriage in Islamic law is usually out of community of property, with each spouse owning his or her property separate from the other. I say ‘usually’ as parties are free to conclude alternative agreements concerning their matrimonial property.
Nothing precludes the couple from purchasing an immovable property together in both their names. Generally, however, in Islamic law, whatever property the woman acquires, whether through her mahr, through inheritance or through her work and business, remains her sole property.
She can, of course, decide to voluntarily contribute towards the household, which most women inevitably do.
In Islamic law, the husband, on the other hand, owes a duty of support to his wife and children during the subsistence of the marriage and towards his wife for the period of iddah after a divorce.
It is important to note that even if the parties are married by Islamic rites only, in terms of South African law, both parents owe a duty of support to the minor children born of the marriage, both during and after the dissolution of the marriage, according to their means.
If either party defaults on maintenance, the other party may lodge a complaint with the maintenance officer at the maintenance court (which is based at your nearest magistrate’s court).
The local imam or Muslim judicial body has no powers of enforcement as far as maintenance claims or orders are concerned.
It is also very important to note that a woman in an Islamic marriage (only) who is being subjected to abuse is entitled to protection in terms of the Domestic Violence Act of 1998.
Hence, if she is being subjected to any kind of physical, sexual, emotional or economical abuse by her spouse then she is advised to report it to the nearest South African Police Service, alternatively, obtain a protection order from her nearest family or magistrate’s court.
I cannot overemphasise the fact that Islamic law does not expect wives to patiently persevere in situations of domestic violence. Our beloved Messenger (SAW) never lifted his hands to any of his wives.
In the next edition, I will discuss the further consequences of a marriage concluded by nikah only, as well as what occurs on the dissolution of such a marriage on death or divorce.
