Dispelling the myths surrounding the Muslim Marriages Bill

By Waheeda Amien

There is a lot of misleading and inflammatory information relating to the Muslim Marriages Bill that is doing the rounds within the Muslim community and in the popular media. This article attempts to demystify the Bill and to provide accurate information regarding its main features and what it will mean if the Bill is enacted.

The Bill aims to regulate Muslim marriages and divorces within a Shari’a framework while at the same time providing protection to women. For example, the Bill requires a marriage officer who is defined as a person with knowledge of Shari’a to solemnise the marriage. This person must inform the parties of their right to enter into a standard contract or if they wish, to enter into a separate contract. If the person marrying the couple is not a marriage officer, he must also inform the couple of their right to have their marriage registered under the Bill. If the person solemnising the marriage fails to comply with these requirements, he may be subject to a fine. These requirements were inserted into the Bill to ensure that parties are made aware of their rights so that they can make informed choices about how they wish their marriage to be governed.

Under the Bill, men are allowed to marry up to four wives. They have to apply to court for approval of the subsequent marriage by showing that they will be able to treat their wives equally according to the precepts of the Holy Qur’an. Regulation of polygyny in the Bill is aimed at addressing current injustices that are perpetrated by men who marry more than one wife without maintaining them equally.

In many instances, men secretly enter into polygynous marriages and existing wives may only find out about the other wives many years later. Therefore, the Bill requires that existing wives be joined in the proceedings when the husband applies for court approval of his subsequent marriage. The consent of the existing wife is not required. The Bill simply affords her the opportunity to be made aware that her husband wishes to remarry and to place information before the court that she thinks is relevant for the court to know.

The Bill recognises a husband's right to talaq his wife, which is a unilateral repudiation of the wife without having to provide grounds. Presently, this right is abused by many men in the Muslim community. They often repudiate their wives arbitrarily, without notice and without their wives being aware that they have been repudiated. The Bill regulates this right by requiring men to have their talaq certified by an external authority and to serve the talaq on the wife and two witnesses and thereafter to institute an action for divorce against her. This is to address and prevent the current abuses that are taking place in relation to talaq. It does not take away the man’s right to talaq.

The Bill also recognises the right of a husband to delegate his right of talaq to his wife, which is lawful under Shari'a. It does not give the woman the same right to talaq her husband unless he delegates it to her. The Bill further recognises a woman’s Shari’a right to be released from the marriage through khul’a. The Bill defines khul’a as being initiated by the wife and requires the husband’s consent subject to payment of financial compensation by the wife to her husband. The Bill moreover recognises faskh, which under Shari’a is available to men and women.

This is a form of divorce that requires the aggrieved party to apply to a third party to be released from the marriage. If the wife applies for faskh, she may have to pay financial compensation to her husband to be granted faskh. Presently, many women experience great difficulty in obtaining faskh when they apply to members of the ulama for faskh. Their right to faskh is denied even where they have grounds recognised by Shari’a to exit the marriage.

The Bill affords the parties the option to have their dispute mediated before the divorce is finalised in court. Mediation is similar to arbitration, which is encouraged under Shari’a. It allows the couple to choose a third party to facilitate a discussion between them about their marital dispute.

In many instances, women are left destitute after their husbands talaq them or they obtain faskh against them. For this reason, the Bill recommends that a wife’s Shari’a rights to financial compensation be recognised. This includes maintenance that the husband did not provide to the wife during marriage, maintenance during iddah (waiting period commencing divorce), compensation for a breastfeeding period of two years, compensation for services rendered in her husband’s or his family’s business where she was not remunerated and compensation for contributions to the maintenance or increase of her husband’s estate. If a husband contributes to the maintenance and increase of his wife’s estate, he will also be compensated.

The Bill implicitly proposes that a secular court should preside over any matter that arises from the Bill. While this means that a non-Muslim could preside over the matter, parties will be able to present evidence by Shari’a experts so that the court can be guided by that evidence.

It is clear from the above that the Bill aims to give effect to rights and obligations that exist under Shari’a. It does not try to create rights or obligations that are not recognised under Shari’a. The Shari’a rights and obligations outlined above are not currently implemented properly by our ulama, which results in women suffering grave hardships. Since Muslim marriages do not have legal recognition, aggrieved parties such as vulnerable women cannot seek redress in the secular courts.

Enactment of the Bill is therefore essential to provide much needed protection for women. Although the Bill does not afford absolute gender equality between women and men, it will allow women to access rights that they are presently unable to access. If the Bill is not enacted, current injustices against women will continue to be perpetrated.

Waheeda Amien is a Lecturer in Law at the University of Cape Town. She writes in her personal capacity and in her capacity as a member of the Recognition of Muslim Marriages Forum.