Department of Justice and Constitutional Development
It is anticipated that the Muslim Marriages Bill will soon be published for public comment.
Cabinet announced its approval of the draft bill in a media statement following its final official meeting for 2010.
The South African Law Reform Commission (SALRC) published a report on Islamic marriages and related matters in July 2003. In an accompanying media statement, the commission drew attention to the “gross inequities and hardships” that continue to prevail as a result of the non-recognition of Islamic marriages.
In the commission’s view at the time, if promulgated, the proposed draft bill included in the report would go “a long way” towards creating legal certainty with regard to Muslim marriages, giving effect to “Muslim values” and affording women “better protection” in accordance with “Islamic and constitutional tenets”.
A preamble to the report summarised the process of arriving at a draft bill, which began as early as 1990 when a committee met to consider a working paper dealing with the nature of Islamic law and the conflict between it and common law in South Africa. Further work on the project was delayed until the finalisation of the Constitution in 1996, when the investigation was given “the highest possible priority”.
An SALRC project committee was eventually established in 1999 in terms of section 7(A)(b)(ii) of South African Law Reform Commission Act 19 of 1973. An issue paper was circulated for public comment the following year.
The draft bill contained in the report proposed that all Muslim marriages – whether monogamous or polygamous – be recognised as valid “for all purposes” alongside existing civil marriages. Upon commencement of the proposed legislation, an existing civil marriage would fall outside the statute’s ambit unless the parties concerned specified otherwise.
The draft bill included provisions relating to:
· a “minimum marriageable age”;
· “the consent of prospective spouses”; and
· a husband’s arbitrary use of the “talaq” in dissolving a marriage.
In its 2003 form, the draft bill incorporated input from consultative and deliberation processes that were “as wide and as extensive as was possible”.