And is an Antenuptial Contract legally valid where an unregistered Shari'ah Marriage has been solemnised?
Are you unsure of the patrimonial consequences (financial and property-related effects of a legal event) of your imminent or current Muslim marriage?
South Africa, a melting pot of cultures and religions, has long grappled with the legal recognition of Muslim marriages. For years, these unions, solemnised under Shari'ah law (Islamic jurisprudence), existed in a legal grey area, leaving many couples without the protection afforded to civil marriages. This article explores the legality of Muslim marriages in South Africa and the process of registering such marriage at the Department of Home Affairs, often facilitated by an Imam (religious leader). We will also explore the validity of registering an Antenuptial Contract prior to solemnising a marriage in terms of Shari'ah Law.
Historically, Muslim marriages were not recognised under South African law at all, primarily because they could be polygynous (more than one wife is allowed), which conflicts with the definition of a marriage in terms of the Marriage Act of 1961 (Marriage Act). The Constitutional Court, in a landmark 2022 ruling, declared the non-recognition of Muslim marriages unconstitutional, emphasising that it violated rights to equality, dignity, and access to justice. Following this ruling, the government was tasked with promulgating (creating) legislation to recognise Muslim marriages, however, to date the draft Bill has not been passed, which is due to various challenges. This, in simple terms means Muslim marriages are only partially recognised and a Muslim marriage certificate on its own is not tantamount to a civil marriage. There are only certain instances, in terms of common law (case law), where a spouse is offered recognition, an example of this is maintenance claims in cases of death or divorce.
What has however happened since the 2022 ruling is that the registration process for Muslim marriages have been streamlined. Imams were given the opportunity to be trained and accredited as marriage officers. A trained and accredited Imam can register the Muslim marriage at Home Affairs and a civil marriage certificate is issued. More recently, the Department of Home Affairs allows the spouses to register it themselves.
The following documents are required to register the marriage at Home Affairs:
- Muslim marriage certificate.
- South African identity documents or passports of spouses.
- Affidavit signed by both parties confirming details of the Nikah (wedding ceremony) and Mahr (dowry).
- South African identity documents or passports of two witnesses that was present at the Nikah (preferably the ones that signed the Muslim marriage certificate).
Additional documents may be requested depending on the circumstances of the spouses.
An application is submitted at the Department of Home Affairs office together with these documents. After successful processing of the application, a civil marriage certificate is issued.
Where an antenuptial contract has not been entered into and registered at the Deeds Office prior to the registration of the civil marriage, the patrimonial consequences of the marriage is ‘in' community of property i.e. one joint estate.
To have a valid marriage ‘out' of community of property in South Africa, the following requirements must be met:
- Antenuptial Contract
- Both parties must sign an antenuptial contract before the marriage. This contract specifies that the marriage will be out of community of property and outlines the financial arrangements between them. There are two variations of the contract – with accrual or without accrual, from which the parties can choose.
- The antenuptial contract must be signed in the presence of a notary public who will notarise the contract and register it at the Deeds Office.
- Consent
- Both parties must give their full and informed consent to the marriage and the terms of the antenuptial contract.
- Legal Capacity
- They both need to be legally eligible to marry i.e. they must have reached the age of majority (18 years or older) and not party to an existing civil marriage.
- Compliance with Marriage Laws
- The marriage must comply with the Marriage Act of 1961 or the Civil Union Act of 2006, depending on the type of marriage.
- Registration
- The marriage must be registered with the Department of Home Affairs.
Albeit the legal position may very well change once the Bill has been passed, the current one is that a Muslim marriage certificate on its own is not sufficient to gain full legal recognition in terms of the Marriage Act or any other promulgated law. Therefore, an antenuptial contract for all intents and purposes will not be operational until the marriage is registered at the Department of Home Affairs and a civil marriage certificate is issued.
Based on the above, we can conclude that there have been significant steps towards inclusivity and equality despite remaining challenges. The main challenge, in our opinion, is many people not knowing that they may register their Muslim marriage or that it is a requirement for full recognition in terms of our law. There is great risk of leaving yourself unwittingly exposed where you enter into a marriage unaware of the patrimonial consequences thereof.
Are you getting or currently are married in terms of Shari'ah law and uncertain what your matrimonial property regime is or will be? Are you looking to buy or sell a property and party to a registered Muslim marriage but unsure of the ownership structure?
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.
