The Recognition of Muslim Personal Laws in South Africa: Implications of Women's Human Rights

Abstract

Bringing personal status laws into conformity with international and constitutional equal rights provisions is an imperative for the protection of women's human rights. Multicultural secular democracies face a challenge in effectively and meaningfully guaranteeing the right to equality and the right to religion and culture. Currently, Muslim marriages are not legally recognized in South Africa. This creates problems for women, especially in the family law arena. This paper considers law reform efforts aimed at the recognition of such marriages in South Africa. The South African Law Reform Commission has approved a report containing recommendations and a proposed Muslim Marriages Act on the recognition of Islamic marriages. This draft bill seems to codify aspects of Muslim Personal Laws. The South African Commission on Gender Equality introduced an alternative draft bill, the Recognition of Religious Marriages Bill. This draft bill provides for recognition of all religious marriages and avoids issues of codification of specific religious tenets, so as to comply with constitutional imperatives. This paper identifies potential constitutional violations that may emerge in the law reform efforts that are currently taking place in South Africa. It explores amongst other issues, the tensions between women's equality rights and religious rights, codification of religious personal status laws versus recognition of religious marriages, achieving equal access to justice for all women, and also tensions arising between individual equality rights and group equality rights.