Abstract
Due to their potentially polygamous nature, Islamic marriages are not recognised in terms of South African law. The consequences of this non-recognition have been particularly unfair to Muslim women. Until 2000 a Muslim woman had no claim for loss of support if her husband was unlawfully killed. Even today she cannot claim maintenance from her husband after a divorce; she is not an intestate beneficiary after the death of her husband; can be compelled to give evidence against her husband in criminal proceedings and can not claim financial support during the course of her marriage. Since early times there have been calls for the recognition of Islamic marriages. The 1996 Constitution of South Africa protects, among other rights, cultural and religious rights and makes provision for the recognition of cultural and religious marriages by means of legislation. This article gives a brief historical overview regarding the position of Islamic marriages in South Africa. Thereafter the current position of Islamic marriages will be discussed, and finally a few comments regarding the future of Islamic marriages will be given.
Highlights
As already explained, religious communities in South Africa follow religious practices that are, at this stage, not formally recognised in terms of South African law
Due to their potentially polygamous nature, Islamic marriages are not recognised in terms of South African law
This article gives a brief historical overview regarding the position of Islamic marriages in South Africa
Summary
South Africa has been described as a “rainbow nation”. Its population comprises a multicultural, multi-ethnic and multireligious society. The non-recognition of Islamic marriages was and still is a contentious issue in South Africa. Due to their potentially polygamous nature, Islamic marriages are not recognised as valid in terms of South African law.. The 1996 Constitution recognises freedom of religion and makes provision for the recognition of religious and traditional marriages by means of legislation.. The 1996 Constitution recognises the religious diversity of the South African population and opens the door for the future recognition of Islamic marriages.. A few concluding remarks regarding the future of Islamic marriages in the light of the 1996 Constitution and the proposals of the South African Law Commission will be given (see § 4 and 5)
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