For many years South African courts have been faced with complex issues regarding the legal status of marriages solemnized in terms of Muslim rites, and even more so when it came to the rights and recognition of spouses being party to such marriages.
Hindu marriages and traditional religious Muslim marriages are not recognised as having the same legal status as civil marriages in terms of the Marriage Act 25 of 1961 ("the Marriage Act"). As a result, Muslim spouses and their children suffered discrimination due to their traditional religious marriages and children born from such marriages were viewed as illegitimate. Furthermore, Muslim women were denied spousal benefits such as having the right to inherit intestate, to claim maintenance in terms of the Maintenance of Surviving Spouses Act 27 of 1990 and could not inherit a fair distribution of property at the dissolution of their marriage. As a result, the only recourse would lie in expensive High Court litigation, which was not always successful.
In the case of Daniels v Campbell N.O and Others, the wife was not recognised as the surviving spouse of her husband when he passed away without leaving a will. She was informed by the Master of the High Court that because they were married in terms of Muslim law, she had no right to benefit from her husband's estate. In 2003 she approached the courts and was successful. The court ordered that "both the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of 1990 should be amended to make provision for the term 'spouse' as to include 'a husband or wife married in accordance with Muslim rites in a de facto monogamous marriage".
In order to enjoy the legal rights and protection, similar to civil marriages, Muslim couples had to conduct a separate civil ceremony in order for their marriage to be recognised and protected as a valid marriage in the eyes of the law.
However, in April 2014 over 100 Imams (Muslim clerics) were officially appointed as marriage officers in terms of the Marriage Act. Imams had to complete a three-day-course during which they learned about the Marriage Act and wrote an exam. Their accreditation in terms of the Marriage Act now enables Muslim marriages to be legally recognised, enabling Imams to officiate over marriage unions.
However, a Muslim marriage will only be valid where the marriage is solemnized by a marriage officer duly registered as such in terms of the Marriage Act.
The Proprietary consequences of a Muslim marriage solemnised by an Imam who is a marriage officer will now be the same as a civil marriage in terms of the Marriage Act. In other words, such a marriage will be in community of property, unless the spouses have entered into an antenuptial contract whereby excluding the community of property regime with or without the inclusion of the accrual system.
In addition, it should be noted that such a marriage officer may not marry any person who is already a party in another (Muslim) marriage, even where that marriage is not registered as intended in the amendments as yet.
Couples should therefore before concluding the marriage consult with an attorney regarding the legal consequences of the intended marriage along with considering entering into an antenuptial contract tailored to their specific circumstances and needs.
As such it is recommend that parties intending to solemnise their marriage ensures that the marriage officer is duly registered or to seek prior legal advice.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.