By Anton Katz
What happens on death or divorce to persons who marry under religious law or tradition, but not under South African civil law?
If a man and women marry according to a particular religious law (say, religion X) and not South African law, build up a large estate, have four children and then decide to divorce, how are the assets of the couple to be divided, and who gets the children?
If religion X provided that the women gets nothing and on divorce would not be able to see her children would that be fair? Would it be constitutional in democratic South Africa? Could it be suggested that the couple by marrying and divorcing under religion X were simply exercising their constitutional right to freedom of religion? Or should the State be allowed to intervene to protect the children and/or woman if inherent unfairness resulted?
On 31 August 2018 the Western Cape High Court gave judgment in a long running saga about Muslim marriages. It was declared that the State is obliged to respect, protect, promote and fulfil the rights in the Constitution by preparing, initiating, introducing, enacting and bringing into operation without delay legislation to recognise marriages solemnised in accordance with the tenets of Sharia law (‘Muslim marriages’) as valid marriages and to regulate their consequences.
The circumstances of one sad case afford an illustration of women’s vulnerability. The wife, Taryn Faro, began living with the late Moosa Ely during November 2006. Moosa had an adult son, Tashrick, from a prior marriage. Taryn and Moosa had their first child, Sharief, during November 2007. On 28 March 2008 Moosa and Taryn married in accordance with Islamic rites. Imam Saban officiated. Because Imam Saban was not a licensed marriage officer, the union did not constitute a marriage for purposes of civil law.
On the 24 August 2009 they had an argument about his alleged failure to give her money for food. Moosa went to the home of Imam Saban and told him that he wanted him to pronounce a Talaq. Without talking to Taryn, Imam Saban gave Moosa a Talaq certificate. In accordance with Islamic rites, this dissolved the marriage. The applicant was seven months pregnant with their second child, Mujaid, who was born on 26 October 2009. Moosa died of lung cancer on 4 March 2010.
Naziema Bardien is Moosa’s adult daughter from an earlier marriage. She considered herself to have an interest in Moosa’s estate. On 8 April 2010, and without Taryn’s knowledge, Bardien obtained the certificate declaring that the marriage between Moosa and Taryn had been dissolved. Taryn claimed she and her two children were forced out of the family home she shared with Moosa and she had to live in shelters while her two children with Moosa were taken into care. Taryn argued to the court that fairness and the Constitution demanded that she be regarded as the spouse of Moosa.
The legal background is that marriages entered into in terms of the tenets of Islam have not been afforded legal recognition. The Women’s Legal Centre and certain individuals approached the court and argued that non-recognition and non-regulation of Muslim marriages violates the rights of women and children in particular. This was based on objectionable views of intolerance against Muslims, which prevailed in colonial and apartheid South Africa. In the Ismail judgment, the Court regarded the recognition of polygynous unions solemnised under the tenets of the Muslim faith as void on the ground of it being contrary to accepted customs and usages, then regarded as morally binding upon all members of society. Recognition of polygynous unions was seen as a regressive step and entirely immoral.
Over a period of time South African courts intervened and criticised attitudes rooted in discrimination and prejudice meted by apartheid South Africa against Muslim communities. The Constitutional Court stated in 2004 that stereotypical and stunted notions of marriage and family must now succumb to the newfound and restored values of our society, its institutions and diverse people.
The government attempted a resolution by a introducing a Bill on the topic. But there was pressure from various interest groups, including some Muslim organisations which indicated that any legislative intervention in Muslim personal law would lead to transmogrification of the Sharia. Some objections to the proposed Bill to recognise Muslim marriages argued that certain provisions of the Bill were in conflict with Sharia law, are ‘unIslamic’, and that several of the provisions are unconstitutional in that they infringe on the religious freedom of Muslims and their right to equality. Other Muslim groups supported the Bill. The government considered the objections and letters of support, and concluded that complex theological and constitutional issues were raised by the Bill.
The government, to avoid creating any unnecessary tension elected to adopt a cautious approach. So, for example, the government pointed to the fact that even some of those in support of the Bill have intimated that they would insist on certain amendments in the Bill such as appointment of only Muslim judges and assessors to preside over Muslim divorces or actions in which parties thereto are Muslims. The opinions of certain scholars is that this jurisdictional precondition must be viewed within the Qur’anic definition of ‘marriage’ as an act of worship and as a sacred covenant that must, of necessity, be solemnised or terminated by adherents of the Muslim faith.
The Minister of Justice took the view that going ahead with the Bill, without more extensive public participation and consensus from the Muslim community, would cause support from the Muslim community to fall away.
But now the courts have stepped in and forced the government to act. The kinds of issues raised are particularly sharp in the case of Muslim marriages. Under apartheid, Muslims were classed as non-white and the disabilities therefrom were and are manifest.
Now that a Constitution exists to protect all rights, how are the rights to gender equality and freedom of religion to be balanced? Many difficult and nuanced questions and challenges will continue to rear their heads. In the last couple of years the contested kol isha issue arose in Cape Town around Yom HaShoah. If the courts are called in to resolve the competing rights, may I suggest they be given all the facts and legal assistance possible. A just outcome requires the wisdom of Solomon, but even Solomon needed all the facts and the best arguments to be advanced to him.