28 August 2017

South Africa: Bid to Have Muslim Marriage Declared Legally Valid to Be Heard Court

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Wedding band.

A class action suit to have Muslim marriages declared legally valid in South Africa will be heard in the Western Cape High Court on Monday.

The matter, which was filed in 2014, was deferred to be heard together with a matter which raises similar issues, applicant, the Women's Legal Centre (WLC), said.

The court previously ordered the consolidation of a further matter pending before the court, which similarly highlights the plight of Muslim women, the WLC said.

"There are several matters that are pending at a number of courts across the country. This is testament to the fact that Muslim women are struggling to assert their rights because their Muslim marriages and the consequences arising therefrom are not legally recognised," the centre said in a statement.

"They have no option but to plead their cases with the courts and the judiciary."

Divorce

Judges Siraj Desai, Gayaat Salie-Hlophe and Nolwazi Boqwana have been appointed to hear the matter.

According to the non-profit law centre, legal steps to ensure fairness between the spouses, as well as ensuring children's rights, when civil or customary marriages break down, do not exist in Muslim and religious marriages.

"Once customary marriages were given full legal recognition, the historical basis for not recognising polygynous marriages fell away," attorney Hoodah Abrahams-Fayker said in a statement when the application was first heard in September 2016.

"The courts have already found the lack of inclusion of Muslim marriages to be discriminatory in respect of inheritance and spousal dependent's claims, but legislation is needed to recognise them for all purpose."

"We are also often approached by women who cannot get a divorce because it is dependent upon the husband to agree when the wife seeks a divorce. Even where the religious bodies intervene, they have no power to compel a husband to adhere or to enforce an agreement reached."

The centre argues that there is no judicial oversight with Muslim divorces, as there is in civil and customary divorces.

It would rely on arguments that a range of constitutional rights were being violated, including the right to equality.

Source: News24

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