The Minister of Justice and Constitutional Development invites interested parties to submit any comments they might have on the Muslim Marriages Bill set out below. The Bill is currently available only in English, and the Afrikaans translation will be available later on request. Any person wishing to comment on the Bill is invited to submit written comments to the Minister of Justice and Constitutional Development. Comments should kindly be directed for the attention of Mr T N Matibe, Private Bag X81, Pretoria, 0001, or faxed to him at 086 648 7766 not later than 15 March 2011. (Electronic mail address: TMatibe@justice.gov.
The Bill emanates from an investigation by the South African Law Reform Commission (the SALRC) on Islamic Marriages and Related Matters. Its report on the matter contains legislative proposals in the form of a Muslim Marriages Bill. The aim of these legislative proposals is to provide statutory recognition of Muslim marriages in order to redress inequities and hardships arising from the non-recognition of these marriages.
The Bill is applicable to persons who adhere to the Muslim faith and who elect to be bound by its provisions. In other words, it contains an opting out provision for persons who do not wish to be bound by it. The need for this legislation finds support in section 15(3) of the Constitution.
marriages concluded under any tradition, or a system of religious, personal or family law; or systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.
In this Act, unless the context otherwise indicates- "court" means a High Court of South Africa, 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 Registries 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 marriage 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. 70 of 1979); "dower" (mahr) means the money, property or anything of value, including benefits which must be payable by the husband to the wife as an ex lege consequence of the marriage itself in order to establish a family and lay the foundations for affection and companionship; "existing civil marriage" means an existing marriage concluded according to Islamic law which has also been registered and solemnised in terms of the Marriage Act before the commencement of this Act ; "facilitating a marriage" as referred to in section 6(9) means applying the marriage formula in a ceremony (nikah); "Family Advocate" means any Family Advocate appointed under section 2(1) of the Mediation in Certain Divorce Matters Act, 1987 (Act No.
if she is pregnant, extends until the time of delivery.
to a TalÄq expressly pronounced as irrevocable at the time of pronouncement; and to the pronouncement of a third TalÄq; "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 Al-Din); "Muslim marriage" means a marriage 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 terms of section 2 of the Deeds Registries Act; "revocable TalÄq" means a TalÄq 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; "TafwÄ«d al-TalÄq" means the delegation according to Islamic Law by the husband of his right of TalÄq to the wife or any other person, either at the time of the conclusion 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 TalÄq strictly in accordance with the terms of such a delegation; "TalÄq" means the dissolution of a Muslim marriage, immediately or at a later stage, by a husband or his agent by using the word TalÄq 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 before the commencement of this Act, unless the parties, within a period of 36 months or such longer period as may be prescribed, as from the date of the commencement of this Act, jointly to 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.
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 agreement in the prescribed manner, elect to have the dispute dealt with outside the provisions of this Act.
the prospective bride and groom must, subject to subsections (4) and (5), have been 18 years old or older; and the provisions of this section and sections 6 and 7 must have been complied with.
If either of the prospective spouses is a minor, the Wali (guardian) of the minor must conclude the marriage on behalf of the minor.
The Cabinet member 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 permission 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 if the 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.
The prohibition of a Muslim marriage between persons on account of their relationship by blood or affinity 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 commencement 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.
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 Deaths Registration Act, 1992, or any other law applicable to a foreign national.
A Muslim marriage must be concluded in accordance with the formulae prescribed in Islamic law, including zawwajtuka and ankahtuka ("I marry you (to)").
the registration of any Muslim marriage; or the cancellation or rectification of any registration of a Muslim marriage effected by a marriage officer.
Any person who facilitates the conclusion of a Muslim marriage, irrespective of whether that person is a marriage 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.
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 fine not exceeding R20 000.
Failure to register a Muslim marriage as provided for in subsection (1)(a) does not affect the validity of the marriage.
If parties 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.
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.
sufficient written notice of the proposed change has been given to all creditors of the spouses for amounts exceeding R500 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.
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 maintain equality between his spouses as is prescribed by the Holy Qur'an.
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.
A husband who concludes a further Muslim 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 right 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.
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 may 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 marriage insofar as the parties have, in the prescribed manner, elected to make the provisions of this Act applicable to the consequences of their marriage.
The husband must register an irrevocable TalÄq (which takes effect as from the time of pronouncement thereof) 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 TalÄq 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 TalÄq, and the wife has pronounced an irrevocable TalÄq (TafwÄ«d al-TalÄq), according to the terms of the delegation.
If a spouse disputes the validity of the irrevocable TalÄq, according to Islamic Law, the marriage 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 from the date of the registration of the irrevocable TalÄq, institute an action in a competent court for a decree confirming the dissolution of the marriage by way of TalÄq and the action so instituted must be in accordance with the procedures provided for by the applicable rules of court.
A copy of the certificate of registration of the irrevocable TalÄq must be annexed to the summons initiating the action referred to in paragraph (e).
An irrevocable TalÄq 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 TalÄq 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 TalÄq 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 of Faskh in section 1.
The granting of a Faskh by a court, including a Faskh granted upon the application of the husband, has the effect of terminating the marriage, in accordance with Islamic Law.
The marriage officer must register the Khula' as one irrevocable TalÄq, in which event the provisions of subsection (3)(e), (f) and (g) apply with the changes as may be required by the context.
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, 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-TalÄq) in defined circumstances permitted 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 recommendations 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 must 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-hadÄnah) or guardianship (al-walÄyah) of minor children, award or grant custody or guardianship to any person as the court deems appropriate, in all the circumstances.
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 Family Advocate concerning the welfare of minor children in accordance with Islamic Law before making an order referred to in paragraph (a).
A maintenance order made in terms of this Act may at any time be rescinded or varied or suspended by a court on good cause shown.
If the 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 the husband, for any reason, refusing to pronounce an irrevocable TalÄq, 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.
Any regulation made under subsection (1) which may result in financial expenditure for the State must be made in consultation with the Cabinet member responsible for finance.
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 determined by the court, having regard to all relevant factors, including the principles of conflict of laws and in accordance with Islamic Law.
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.
forms an asset in a joint estate and was registered in the name of the husband only; or (d) 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 Act, 1998(Act No. 120 of 1998), or a marriage governed by the Muslim Marriages Act, 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 Act 1998 (Act 120 of 1998), or in section of the Muslim Marriages Act, 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." 2.
88 of 1984, [or] under section 7 of the Recognition of Customary Marriages Act, 1998, or under sections.. or .. of the Muslim Marriages Act, 20 , as the case may be, in terms of which the property, lease or bond is awarded to one of the spouses;" and (b) by the substitution for paragraph (b) of subsection (1A) of the following paragraph: "(b) forms or formed an asset in a joint estate and a court has made an order, or has made an order and given an authorisation under section 20 or 21(1) of the Matrimonial Property Act, 1984 (Act 88 of 1984), [or] under section 7 of the Recognition of Customary Marriages Act, 1998, or under sections.. or .. of the Muslim Marriages Act 20.., as the case may be, in terms of which the property, lease or bond is awarded to both spouses in undivided shares;".
Act 81 of 1987 Intestate Succession Act, 1987 1. Amendment of section 1 by the insertion after paragraph (f) of subsection (4) of the following paragraph: "(g) "spouse" includes a spouse of a Muslim marriage recognised in terms of the Muslim Marriages Act, 20..
Act No and year Short title Extent of repeal or amendment spouse or spouses inherit the intestate estate in equal shares; (ii) for the purposes of subsection (1)(c), the surviving 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 Spouses Act, 1990 1. Amendment of section 1 by the insertion after the definition of "executor" of the following definition: " 'marriage' includes a Muslim marriage recognised in terms of the Muslim Marriages Act, 20.. , and otherwise includes a union recognised as a marriage in accordance with the tenets of any religion.".