The Muslim Marriages Bill has been opened for public comment until 15 March 2011. It has been criticised as not being Shari’a compliant, and for taking the adjudication of Muslim matters out of the hands of Muslims.
The Bill makes provision for the recognition of Muslim Marriages. It further sets out the requirements for a valid marriage and the dissolution of a Muslim marriage. The Bill then makes provision for the patrimonial consequences and the custody and maintenance of minor children of a divorce.
REQUIREMENTS FOR A VALID MARRIAGE
The Bill gives legal recognition to all Islamic marriages entered into before the commencement of the Act (including the polygamous ones).
In order for a marriage entered into after the commencement of the Act to be valid, both intended spouses must be at least 18 years old and both intended spouses must both consent to the marriage.
The marriage must be contracted with the formula prescribed by Islamic law and must thereafter be duly registered with a marriage officer. However, failure to register does not, in itself, affect the validity of that marriage.
While the Bill fails to set out the maximum number of wives a man may have, and it can be assumed that this maximum would be in accordance with Islamic law.
CONSEQUENCES OF A MUSLIM MARRIAGE
An Islamic marriage entered into before/ after the commencement of the Act shall be deemed to be a marriage out of community of property (excl accrual) unless otherwise agreed to in terms of an Ante Nuptial Contract (“ANC”). In respect of marriages after the Act, this ANC does not need to be attested to by a notary for it to be registered with the Deeds Registry.
Where a husband wants to take an additional wife, he must make an application to Court for permission to do so, and he must approve a written contract, which will regulate the further matrimonial property system of his marriages. If he takes a new wife without the required permission, then he will be guilty of an offence and liable to a fine not exceeding R50 000.00.
The Court may grant the order allowing a further marriage, if the written contract is in order. In the event that the First marriage is in community of property or including the accrual system, then the Court may terminate the matrimonial property system and order the immediate division of the joint estate, or the accrual, before the husband marries his new wife.
The Court must be assisted by two Muslim assessors when making decisions regarding the granting of an application for an additional wife, as well as the consequences thereof.
Ian Mc Laren