AL JAMA-AH’S AMENDMENTS TO THE DIVORCE MARRIAGE BILL HAVE BEEN APPROVED BY PARLIAMENT.

THIS IS WHAT YOU NEED TO KNOW

AL JAMA-AH’S AMENDMENTS ON DIVORCE BILL APPROVED BY CABINET

AL JAMA-AH’s four amendments to the Divorce Act 1997 have been approved by Cabinet last week. In 2022 the Party submitted two private members bills to Parliament calling for the recognition of Muslim Marriages and for amendments to the Divorce Act which will afford Muslims legal discourse in matters of dispute. The new Draft Marriages Bill will now be open for public comment.

“In June 2022, the Constitutional Court had found that the Divorce Act in its current form to be inconsistent with the Constitution as it excludes Muslim Marriages. The court found that a section of the Divorce Act is unconstitutional in that it unfairly discriminates against child of married parents and those of unmarried parents,” said Minister in The Presidency Khumbudzo Ntshavheni.

Of the five clauses proposed to amend unconstitutional sections of the Divorce Act, the four clauses proposed by Al Jama-ah are:

• Clauses 1 – insertion of a new definition of Muslim marriage recognised by the

Constitutional Court Judgement to be part of South Africa’s common law.

• Clause 2 – amends section 6 of the Divorce Act by providing safeguarding mechanisms for minors or dependants of a Muslim
• Clause 3 – amends section 7 of the Divorce Act by empowering a court to grant a divorce decree on the dissolution of a Muslim marriage to make an order with regard to the redistribution of
• Clause 4 – amends section 9 of the Divorce Act to empower a court when granting a divorce a decree on the dissolution of a Muslim marriage to give an order that patrimonial benefits of a Muslim marriage be forecited in stipulated

The amendments include Al Jama-ah’s proposed definition of a Muslim marriage under Section 1 of the Divorce Amendment bill: “A marriage concluded in accordance with Islamic Law, that is, Shariah, which regulates all public and private behaviour as derived from traditional customs (Al-Urf), the two primary sources, namely, the Quran and Sunnah (Prophetic model) and that uses juristic tools such as ijma (the consensus) of Muslim Jurists and the individual jurist’s qiyas (analogical deductions) to issue legal edicts.”

The proposed amendments will allow Muslim women to access the divorce court which will give them the same benefits and protection as minor and dependent children in civil marriages. Due to the non-recognition of Muslim marriages, many Muslim families have suffered because of the harm South African legal system has caused as regards Muslim marriages; in these, Muslim wives and their children were often left destitute, homeless, and penniless when the spouse (that is, the husband) dies or agrees to a divorce.

Discrimination

Muslim women have for many years face hardships due to the non-recognition of Muslim marriages. The discriminatory clauses not only denied Muslim women their rights as espoused in Islam, but also from the rights women of other faiths enjoy under the current South African civil law and the Constitution of 1996. In many cases women were left helpless as the existing law does not enforce the husband to fulfil his obligations to the wife and children according to Islam. Islam has granted women fundamental rights but due to the patriarchal social system women are being denied their rights.

The current civil law leaves women in cases of divorce impoverished despite their financial contributions to the marriage; they are easily alienated from the benefits of the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of 1990.

“The non-recognition of Muslim marriages thus permits the persistent alienation of Muslim women from their rights provided for in Islam which impedes on their personhood and dignities,” says adv Fayruz Nagia.

The discrimination against Muslim women and the hardships they endure, were for the first time raised in by a Member of Parliament, Al Jama-ah’s leader Hon Ganief Hendricks. “This was Al Jama-ah’s 2019 Election Manifesto mandate from the Muslim community to pursue for the recognition of Nikah marriages so Muslim women can access the Divorce Court for their rights in terms of Shariah for their share of the estates at time of Talaq or death of a spouse,” says Hendricks.

This new bill will assist the office of the family advocate to assist with the investigation, welfare, and best interest of minor children; the help will be extended to the children born from a Muslim marriage as well as parents will no longer suffer under the inconsistencies and prejudice of the previous Act.

Rights in Shariah

Shariah puts great emphasis on Freedom, Justice, and Rights; however, these have been misunderstood by many despotic regimes in the Muslim world. They imposed certain aspects of Islamic Law and yet ignored many other aspects which made Muslims to only belief that which was propagated by despotic regimes. One cannot speak about Islamic Law or Shariah without referring to the three major issues which are emphasised in Islam, which is freedom, justice, and rights.

“Freedom meaning, not only Muslims but whoever is resident in the place where Islam is ruling, must be free. Freedom of conviction is a prerequisite for being Muslim. The concept of freedom is one of the imperatives in Shariah,” says Shaykh Ramadan Ahmed.

On the question of Justice, he says: “all the citizens of a state must be equal before the law and there is nobody who is above the law, no matter what position they occupy in society. Whatever is Right by nature, the state should fulfil its obligations towards its citizens. These are three major elements without which you can never talk about Islam in the context of the state,” he says.

THE NEW MUSLIM MARRIAGE BILLS

DRAFT BILLS

DRAFT : RECOGNITION OF RELIGIOUS MARRIAGES BILL

(i) Misconduct
(ii) Fraud
(iii) Excess of power
(iv) Gross irregularity
(2) For the purposes of this Act a gross irregularity shall not include a review for reasonableness.

6. Compulsory Mediation and Arbitration

(1) In the event that the parties do not elect to mediate their disputes or arbitrate their disputes by way of private mediation and arbitration in terms of the previous section, then the following shall apply.
(2) In the event of any dispute arising during the subsistence or otherwise or the termination of a religious marriage, prior to instituting legal proceedings, the parties must refer the dispute for mediation to a prescribed and accredited mediation council.
(3) The mediation council must attempt to resolve the dispute by means of mediation within a period of 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.
(4) The mediation council must upon resolution of the dispute, submit the mediation agreement to court, within 45 days and the court, must if satisfied, confirm the mediation agreement unless there is evidence that it is not binding under the religious system recognized by the parties.
(5) In the event that a mediation fails, either party may have recourse to a court. The court hearing the matter may, if it is expedient to do so, direct that the parties resolve the dispute through arbitration and may for that purpose appoint an arbitrator to arbitrate such dispute in the event that the parties are not in agreement to that arbitrator’s identity.
(6) Any arbitrator appointed by the court to arbitrate that dispute must be qualified to resolve that dispute under the laws applicable to the religious system.

7. Amendment of Laws

The Acts specified in the Schedule are hereby amended to the extent set out in the third column of the Schedule.

8. Short title and commencement

This Act is called Recognition of Religious Marriages Act 20…. And comes into operation on a date fixed by the President by proclamation in the Gazette.
SCHEDULE

The following Act is amended :

Arbitration Act 42 of 1965 Amendment of Section 2(a) by the introduction of the words “unless the arbitration is concluded under the Recognition of Religious Marriages Act” after the word ‘or any cause’ in subsection (a) so that the section reads “reference to arbitration shall not be permissible in respect of :
(a) any matrimonial cause or any matter incidental to such cause unless such arbitration is conducted in terms of the Recognition of Religious Marriages Act…”