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
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
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.