The Minister of Justice and Constitutional Development invites interested parties to comment on the Muslim Marriages Bill. Any person wishing to comment on the Bill is invited to submit written comments to the Minister of Justice and Constitutional Development not later than 15 March 2011.
Background: The Bill emanates from an investigation by the South Mrican Law Reform Commission (the SALRC) on Islamic Marriages and Related Matters. This section provides that the right to freedom of religion, belief and opinion does not preclude legislation recognising marriages concluded under any tradition, or a system of religious, personal or fannly law; or systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.
The Bill sets out a statutory framework for the legal recognition of Muslim marriages and their consequences.
To make provision for the recognition of Muslim marriages; to specify the requirements for a valid Muslim marriage; to regulate the registration of Muslim marriages; to recognise the status and capacity of spouses in Muslim marriages; to regulate the proprietary consequences of Muslim marriages; to regulate the termination of Muslim marriages and the consequences thereof; and to provide for matters connected therewith.
In this Act, unless the context otherwise indicates"court" means a High Court of South Mrica, or a court for a regional division as provided for in section 29(1B) of the Magistrates' Courts Act, 1944 (Act No. 32 of 1944); "Deeds RegistIies Act" means the Deeds Registries Act, 1937 (Act No. 47 of 1937); "deferred dower" means the dower or part thereof which is payable on an agreed future date but which, in any event, becomes due and payable upon the dissolution of a nlarriage by divorce or death; "dispute" means a dispute or an alleged dispute relating to the interpretation or application of any provision of this Act or any applicable law; "Divorce Act" means the Divorce Act, 1979 (Act No.
Mediation in Certain Divorce Matters Act, 1987 (Act No.
the husband is a spouse in more than one Muslim marriage and fails to treat his wife just!
to a Talaq expressly pronounced as irrevocable at the time of pronouncement; and to the pronouncement of a third Talaq; "Islamic Law" means the law as derived from the Holy Qur'an, the Sunnah (prophetic model), the consensus of Muslim Jurists (Isma) and analogical deductions based on the primary sources (Qiyas); "Khula' " means the dissolution of the marriage bond at the instance of the wife, in terms of an agreement for the transfer of property or other permissible consideration between the spouses according to Islamic law; "maintenance court" means a maintenance court as referred to in section 3 of the Maintenance Act, 1998 (Act No. 99 of 1998); "Marriage Act" means the Marriage Act, 1961 (Act No.
Islam (Daruriyyat AI-Din); "Muslim marriage" nleans a maniage between a man and a woman contracted in accordance with Islamic law only; "prescribed" means prescribed by regulation made under section 14; "prompt dower" means the dower or part thereof which is payable at the time of the conclusion of a marriage or immediately thereafter upon demand by the wife; "Registrar of Deeds" means the Registrar of Deeds appointed in temlS of section 2 of the Deeds Registries Act; "revocable Taliiq" means a Taliiq Raj'I which does not terminate the marriage before the completion of the 'Iddah, and in terms of which the husband may, for the purposes of reconciliation, resume conjugation before the expiry of the 'Iddah only; "Ta!wfd al-Taliiq" means the delegation according to Islamic Law by the husband of his right of Taliiq to the wife or any other person, either at the time of the e:onclusion of the marriage or during the subsistence of the marriage, so that the wife or the appointed person may terminate the marriage by pronouncing a Taliiq strictiy in accordance with the terms of such a delegation; "Taliiq" means the dissolution of a Muslim marriage, immediately or at a later stage, by a husband or his agent by using the word Taliiq or a synonym or derivative thereof in any language; and "this Act" includes the regulations.
The provisions of this Act apply to Muslim marriages concluded after the commencement of this Act where the parties to the marriage elect, in the prescribed manner, to be bound by the provisions of this Act.
The provisions of this Act apply to Muslim marriages concluded before the commencement of this Act, unless the parties, within a period of 36 months or such longer period as may be prescdbed, as from the date of the commencement of this Act, jointly te elect, in the prescribed manner, not to be bound by the provisions of this Act, in which event the provisions of this Act do not apply to such a marriage.
The law applying to a Muslim marriage in respect of which the parties have elected not to be bound by the provisions of this Act, is the law as it was before this Act came into operation.
do not apply to a civil marriage solemnised under the Marriage Act after the commencement of this Act; and do not apply to a customary marriage registered under the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998).
A Muslim marriage to which this Act applies and in respect of which all the requirements of this Act have been complied with, is, for all purposes, recognised as a valid marriage.
A wife and a husband in a Muslim marriage are equal in human dignity and both have, on the basis of equality, full status, capacity and financial independence, including the capacity to own and acquire assets and to dispose of them, to enter into contracts and to litigate.
Any dispute arising from a Muslim marriage which was concluded but terminated before the commencement of this Act, must be dealt with in terms of the provisions of this Act, unless the parties, by agreenlent in the prescribed manner, elect to have the dispute dealt with outside the provisions of this Act.
(a) Where a dispute arises between a husband in a polygamous marriage, and one or more of his spouses, and the dispute is pending before a court of competent jurisdiction, and irrespective of whether the dispute is in relation to a marriage governed by the provisions of this Act or not, all spouses to whom the husband is married must be given notice of the dispute.
In making an order pursuant to the provisions of paragraph (a), the court must take into account the rights of all affected parties.
the provisions of this section and sections 6 and 7 nlust have been complied with.
No spouse in a Muslim marriage to whom this Act applies may subsequently conclude a marriage under the Marriage Act or any other law governing marriages, except this Act, during the subsistence of such a Muslim marriage.
If a marriage is concluded in contravention of the provisions of subsection (2), such a purported marriage is deemed to be null and void.
Ifeither of the prospective spouses is a minor, the Wal(guardian) of the minor must conclude the marriage on behalf of the minor.
The Cabinet nlember responsible for home affairs or any Muslim person or Muslim body authorised in writing thereto by him or her, may grant written permission to a person under the requisite age to conclude a Muslim marriage if the Cabinet member or the person or body in question considers the marriage to be desirable and in the interests of the parties in question.
If a person under the requisite age has concluded a Muslim marriage without the written pernlission of the Cabinet member or person or body authorised by him or her, the Cabinet member or the person or body in question may, if he, she or it considers the marriage to be desirable and in the interests of the parties in question, and ifthe marriage was in every other respect in accordance with the provisions of this Act, declare, in writing, that the marriage is a valid Muslim marriage for all purposes.
Nothing contained in this section precludes a person under the age of 18 years, assisted by the Family Advocate, from approaching a court for appropriate relief.
The prohibition of a Muslim marriage between persons on account of their relationship by blood or affmity or fosterage, or any other reason, is determined by Islamic law.
concluded before the commencement of this Act, unless the parties have elected not to be bound by the provisions of this Act as provided for in section 2(2), must be registered in the prescribed manner within a period of two years after the conlmencement of this Act or within such longer period as the Cabinet member responsible for home affairs may, from time to time, determine by notice in the Gazette; or concluded after the commencement of this Act, where the parties have elected to be bound by the provisions of this Act as provided for in section 2(1), must be registered as prescribed at the time of the conclusion of the marriage or within any longer period as the Cabinet member responsible for home affairs may, from time to time, determine by notice in the Gazette.
No marriage officer may register any marriage unless each of the parties in question produces to the marriage officer his or her identity document issued under the provisions of the Identification Act, 1997 (Act No. 68 of 1997), or his or her birth certificate issued under the provisions of the Birth and Deaths Registration Act, 1992 (Act No.
one of the parties, who is a foreign national, furnishes the marriage officer with proof of his or her lawful sojourn in the Republic, together with his or her original passport or travel document and a prescribed affidavit sworn to. before an officer of the Department of Home Affairs, or, in cases of refugees, an original copy of his or her Refugee Identity Document issued in terms of the provisions of the Refugees Act, 1998 (Act No.130 of 1998); or each of the parties, who is a widow or widower, as the case may be, furnishes the marriage officer with a copy of his or her deceased spouse's death certificate issued under the provisions of the Birth and De3ths Registration Act, 1992, or any other law applicable to a foreign national.
issue to the spouses a certificate of registration, bearing the prescribed particulars; and immediately, in the prescribed manner, submit the relevant records to the nearest office of the Department of Home Affairs.
A Muslim marriage must be concluded in accordance with the formulae prescribed in Islamic law, including zawwajtuka and ankahtuka ("I marry you (to) ").
If the marriage officer is satisfied that the requirements for a valid Muslim marriage were not complied with, he or she must refuse to register the marriage.
A court may, upon the application any of the spouses, order the registration of any Muslim marriage; or the cancellation or rectification of any registration of a Muslim marriage effected by a marriage officer.
A certificate of registration of a Muslim marriage issued under this section or any other law providing for the registration of Muslim marriages constitutes prima facie proof of the existence of the Muslim marriage and of the particulars contained in the certificate.
Any marriage officer who knowingly registers a marriage in contravention of the provisions of this Act, is guilty of an offence and liable on conviction to a fine not exceeding R20 000.
Any person who facilitates the conclusion of a Muslim marriage, irrespective of whether that person is a nlarriage officer or not, must inform the prospective spouses that they have a choice whether or not to be bound by the provisions of this Act.
If the parties to a proposed marriage elect to be bound by the provisions of this Act as provided for in section 2(1), the person facilitating the marriage referred to in paragraph (a) must direct the parties to a marriage officer for purposes of registering the Muslim marriage so facilitated.
The person facilitating the marriage referred to in paragraph (a) who fails to comply with the provisions of paragraph (b), is guilty of an offence and liable upon conviction to a me not exceeding R20 000.
(1)(a) does not affect the validity of the marriage.
Ifparties appear before a marriage officer for the purpose of concluding a Muslim marriage with each other and the marriage officer reasonably suspects that either of them is of an age which debars him or her from concluding a valid Muslim marriage without the consent or permission of some other person, the marriage officer may refuse to register a marriage between them, unless he or she is furnished with the required consent or permission in writing, or with satisfactory proof showing that the party in question is entitled to conclude a marriage without consent or permission.
A Muslim marriage to which this Act applies is deemed to be a marriage out of community of property excluding the accrual system, unless the proprietary consequences governing the marriage are regulated by nlutual agreement of the spouses, in an antenuptial contract which must be registered in the Deeds Registry in the case of a marriage concluded before the commencement of this Act, and if at the time of the conclusion thereof a written agreement regulating the proprietary consequences of the marriage existed between the spouses, within 12 months from the date of commencement of this Act; and in the case of a marriage concluded after the commencement of this Act, within three months from the date of execution of the contract, or within any extended period as the court may, on application, allow.
Subject to subsection (1), the provisions of the Deeds Registries Act apply, with the changes required by the context, to the registration of an antenuptial contract referred to in that subsection.
sufficient written notice of the proposed change has been given to all creditors of the spouses for amounts exceeding RSOO or any other amount as may be determined by the Cabinet member responsible for the administration of justice by notice in the Gazette; and no other person will be prejudiced by the proposed change, order that the matrimonial property system applicable to the marriage or marriages will no longer apply and authorise the parties to the marriage or marriages to enter into a written contract in terms of which the future matrimonial property system of their marriage or marriages will be regulated on conditions determined by the court.
In the case of a husband who is a spouse in more. than one Muslim marriage, all persons having a sufficient interest in the matter, and in particular the husband's existing spouses, must be joined in the proceedings.
Where the husband is a spouse in an existing civil marriage, and in a Muslim marriage, all his existing spouses must be joined in those proceedings.
A husband in a Muslim marriage, to which this Act applies, who wishes to conclude a further Muslim marriage with another. woman after the commencement of this Act must apply to court for approval to conclude a further Muslim marriage in terms of subsection (7); and for approval of a written contract which will regulate the future matrimonial property system of his marriages.
When considering the application in terms of subsection (6), the court must grant approval if it is satisfied that the husband is able to nlaintain equality between his spouses as is prescribed by the Holy Qur'an.
If a court grants approval for a husband to conclude a further Muslin1 marriage as provided for in paragraph (a) it may, in the case of an existing marriage which is in community of property or which is subject to the accrual system or other contractual arrangement, terminate the matrimonial property system which is applicable to that marriage and may order an immediate division of the joint estate concerned in equal shares, or on such other basis as the court may deem just; or order the immediate division of the accrual concerned in accordance with the provisions of Chapter 1 of the Matrimonial Property Act, 1984 (Act No. 88 of 1984), or on any other basis as the court may deem just.
The court must make an order in respect of the prospective estate of the spouses concerned as is mutually agreed, or, failing any agreement, the marriage is deemed to be out of community of property, unless the court, for compelling reasons, decides otherwise.
All persons having a sufficient interest in the matter, and in particular the applicant's existing spouse or spouses and his prospective spouse, must be joined in the proceedings instituted in terms of subsection (6).
If a court grants an application as provided for in subsection (3) or (6), the registrar or clerk of the court, as the case may be, must furnish each spouse with an order of the court including a certified copy of the contract and must cause the order and a certified copy of the contract to be sent to each Registrar of Deeds of the area in which the court is situated for the purposes of recording the agreement in terms of section 3(1)(w) of the Deeds Registries Act.
No marriage officer may register a second or subsequent Muslim marriage, unless the husband provides the marriage officer with the order of the court granting the required approval in terms of subsection (7).
A husband who concludes a further Muslinl marriage while he is already married, without the permission of the court, in contravention of subsection (6), is guilty of an offence and liable on conviction to a fine not exceeding R20 000.
Any person who intentionally prevents another person from exercising any light conferred under this Act, is guilty of an offence and liable upon conviction to a fine or to imprisonment for a period not exceeding one year.
The provisions of section 2 of the Divorce Act apply, with the changes required by the context, in respect of the jurisdiction of a court for the purposes of this Act.
Notwithstanding the provisions of section 3(a) of the Divorce Act or anything to the contrary contained in any law or the common law, a Muslim marriage rnay be dissolved by a court on any ground permitted by Islamic law and the provisions of this section also apply, with the changes required by the context, to an existing civil maniage insofar as the parties have, in the prescribed manner, elected to make the provisions of this Act applicable to the consequences of their maniage.
The husband must register an irrevocable Taliiq (which takes effect as from the time of pronouncement thereot) immediately, but in any event, not later than 30 days after its pronouncement, with a marriage officer in the magisterial district closest to his wife's residence, in the presence of two competent witnesses, and after due notice to the wife.
The marriage officer may register the irrevocable Taliiq only if the husband satisfies the marriage officer that due notice in the prescribed form of the intended registration was served upon the wife by the sheriff or by substituted service.
The provisions of paragraphs (a) and (b) apply, with the changes required by the context, where the husband has delegated to the wife the right of pronouncing a Taliiq, and the wife has pronounced an irrevocable Taliiq (Tafwzd al-Taliiq), according to the terms of the delegation.
If a spouse disputes the validity of the irrevocable TaHiq, according to Islamic Law, the nlarriage officer may not register it, until the dispute is resolved by the court or pursuant to a written settlement between the spouses.
A spouse must, within 14 days as fronl the date of the registration of the irrevocable Taliiq, institute an action in a competent court for a decree confirming the dissolution of the marriage by way of Taliiq and the action so instituted must be in accordance with the procedures provided for by the applicable rules of court.
if) A copy of the certificate of registration of the irrevocable Taliiq must be annexed to the summons initiating the action referred to in paragraph (e).
an application for maintenance during the 'Iddah period.
An irrevocable Taliiq taking effect before the commencement of this Act is not required to be registered in terms of the provisions of this Act.
Any husband who knowingly and wilfully fails to register an irrevocable Taliiq in accordance with subsection (3) is guilty of an offence and is liable on conviction to a fine not exceeding R20 000.
Where an irrevocable Taliiq has not been registered in accordance with subsection (3), it is nonetheless effective as from the time of its pronouncement.
A court must grant a decree of divorce in the form of a Faskh on any ground which is recognised as valid for the dissolution of marriages under Islamic law, including the grounds set out in the definition ofFaskh in section 1.
The wife must institute an action for a decree of divorce in the form of Faskh in a competent court, which must be in accordance with the procedures provided for by the applicable rules of court.
The institution of an action referred to in paragraph (b) does not preclude a spouse from seeking appropriate relief pendente lite, referred to in subsection (3)(g).
granted upon the application of the husband, has the effect of terminating the marriage, in accordance with Islamic Law.
Spouses who have effected a Khula' must personally and jointly appear before a marriage officer and cause it to be registered in the presence of two competent witnesses.
The marriage officer must register the Khula' as one irrevocable Taliiq, in which event the provisions of subsection (3)(e), (f) and (g) apply with the changes as may be required by the context.
The Mediation in Certain Divorce Matters Act, 1987 (Act No. 24 of 1987), and section 6(1) and (2) of the Divorce Act relating to safeguarding the welfare of any minor or dependent child of the marriage concerned, apply to the dissolution of a Muslim marriage under this Act.
A court granting or confirming a decree for the. dissolution of a Muslim marriage has the powers referred to in section 7(1), (7) and (8) of the Divorce Act and section 24(1) of the Matrimonial Property Act, 1984 (Act No.
must, if it deems it just and equitable, in the absence of any agreement between the parties to the marriage regarding the divisi~n of their assets, order that the assets be divided equitably between the parties, where a party has in fact assisted, or has otherwise rendered services, in the operation or conduct of the fami!
must, when making an order for the payment of maintenance, including past maintenance, take into account all relevant factors; and may make an order for a conciliatory gift (mut'ah al-Taliiq) in defined circumstances permitted by Islamic law.
Upon the termination of a marriage by death, the surviving spouse is entitled to lodge a claim against the deceased estate in respect of any unpaid dower, or otherwise in respect of any tangible contribution recognised by Islamic law.
In making an order for the custody of, or access to a minor child, or in making a decision on guardianship, the court must, with due regard to Islamic law and the report and reconlmendations of the Family Advocate, which must take into account Islamic norms and values, consider the welfare and best interests of the child.
Subject to subsection (1), the non-custodian parent nlust be afforded reasonable access to a child.
In the absence of both parents, for any reason, but subject to subsection (1), the court must, in accordance with Islamic law, in awarding or granting custody (al-hadiinah) or guardianship (al-waliiyah) of minor children, award or grant custody or guardianship to any person as the court deems appropriate, in all the circumstances.
An order regarding the custody or guardianship of, or access to, a child made in terms of this Act, may, subject to paragraph (b), at any time be rescinded or varied or, in the case of access to a child, be suspended by a court on good cause shown.
If an enquiry is instituted by the Family Advocate in terms of section 4(1)(b) of the Mediation in Certain Divorce Matters Act, 1987, the court must consider the report and recommendations of the Fanilly Advocate concerning the welfare of minor children in accordance with Islamic Law before making an order referred to in paragraph (a).
Subject to subsection (2), the provisions of the Maintenance Act, 1998 (Act No. 99 of 1998), apply with the changes required by the context, in respect of the duty of any person to maintain any other person.
that a husband's duty to support a child born of the marriage includes the provision of food, clothing, separate accommodation, medical care and education.
Any amount of maintenance determined under this section must be fair and just, having regard to all the circumstances of the case.
A maintenance order made in temlS of this Act may at any time be rescinded or varied or suspended by a court on good cause shown.
Any unpaid arrear maintenance, either mutually agreed to or in terms of a court order, which is due and payable to a wife may not be extinguished by prescription, notwithstanding the provisions of the Prescription Act, 1969 (Act No. 68 of 1969), or any other law.
In the event of a dispute arising during the subsistence of a Muslim marriage or otherwise arising from such a marriage, any party to the marriage may refer the dispute, at any time, whether before or after the institution of legal proceedings as provided for in section 9(3)(e) or (5)(b), but before the adjudication thereof by a court, to a prescribed accredited mediation council.
The mediation council must attempt to resolve a dispute by means of mediation within 30 days from the date of the referral thereof and the parties may each be represented at the mediation proceedings by a representative of their choice.
The mediation council must, upon resolution of the dispute, submit the mediation agreement to court within 45 days and the court must, if it is satisfied that the interests of any minor children are duly protected, confirm the mediation agreement.
Ifthe mediation council certifies that a dispute remains unresolved or if a dispute remains unresolved after the expiry of 45 days from the date of referral thereof, the dispute may be adjudicated by a court.
In the event of a spouse to an existing civil marriage instituting a divorce action in terms of the Divorce Act after the commencement of this Act, the court may not dissolve the civil marriage by granting a decree of divorce until the court is satisfied that the accompanying Muslim marriage has been dissolved.
In the event of the husband, for any reason, refusing to pronounce an irrevocable Talaq, the wife to the accompanying Muslim marriage is entitled to apply for a decree of Faskh in terms of this Act for that purpose only, in which event the provisions of this Act apply, with the changes required by the context.
The matter may, in circumstances referred to in subsection (2), be referred back to the court in order to determine the proprietary or other consequences of the marriage in terms of the Divorce Act and related matrimonial legislation.
Where, in addition to the existing civil marriage, the husband has concluded a further Muslim marriage or marriages which are registrable under this Act, the husband's existing spouse or spouses must be joined in the divorce action referred to in subsection (1).
The provisions of subsection (1) apply with the changes required by the context, to spouses in an existing civil marriage who have elected to adopt the provisions of this Act, as provided for in section 2.
any other matter which is necessary or expedient to provide for the effective registration of Muslim marriages or the efficient administration of this Act.
prescribing the fees payable in respect of the registration of a Muslim marriage and the issuing of any certificate in respect thereof.
Any regulation made under subsection (1) which may result in fmanciaI expenditure for the State must be made in consultation with the Cabinet member responsible for finance.
Any regulation made under subsection (1) may provide that any person who contravenes a provision thereof or fails to comply therewith is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding one year.
A court is not bound to make an order for costs in favour of the successful party in a divorce action, but the court may, having regard to the means of the parties and their relevant conduct, make an order as it considers just in the circumstances and the court may order that the costs of the proceedings be apportioned between the parties.
In the event of a dispute relating to whether or not a Muslim marriage concluded in a foreign country is recognised as a valid Muslim marriage under this Act, the dispute must be detennined by the court, having regard to all relevant factors, including the principles of conflict of laws and in accordance with Islamic Law.
The Acts specified in the Schedule are hereby amended to the extent set out in the third column of that Schedule.
This Act is called the Muslim Marriages Act, 20 , and comes into operation on a date fIXed by the President by proclamation in the Gazette.
Note: Words in bold type in square brackets indicate omissions from existing enactments. Words underlined with a solid line indicate insertions in existing enactments.
Act 47 of 1937 Deeds Registries Act, 1937 1.
Act No and year Extent of repeal or amendmentShort title forms an asset in a joint estate and was registered in the name of the husband only; or is registered in the name of a person who on the date of the registration was a party to a marriage governed by the Recognition of Customary Marriages i\ct, 1998(i\ct~o. 120 of 1998), or a marriage governed by the Muslim Marriages i\ct. 20.., the registrar shall on the written application by the person concerned and on the submission of the deed in question and of proof of the relevant facts, endorse the change in status or make a note to the effect that the said person is a party to a marriage in community of property, as the case may be: Provided that where there are two or more mutually dependent deeds, all such deeds must be submitted for endorsement: Provided further that in the case of an order envisaged in section 7(9)of the Recognition of Customary Marriages i\ct 1998 (i\ct 120 of 1998), or in section of the Muslim Marriages i\ct. 20 , the registrar shall, on submission of the relevant deed and court order and without the necessity of a written application, make the endorsement or note.
Customary Marriages sections.. or..
Customary Marriages Act, 1998, or under sections.. or..
Muslim Marriages Act 20..
Act 81 of 1987 Intestate Succession Act, 1987 1.
Marriages Act. 20 and otherwise includes the spouse of a deceased person in a union recognised as a marriage in accordance with the tenets of any religion: Provided that in the event of a deceased man being survived by more than one spouse.
for the purposes of subsection (1)(C), spouse or spouses each inherits a child's share of the intestate estate or so much of the intestate estate in equal shares as does not exceed in value the amount so fixed as provided for in this section.
Act 27 of 1990 Maintenance of Surviving 1.