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The Legal Status of Muslim Marriages
We are fortunate to live in a culturally diverse country with a rich heritage and a Constitution that recognises and respects our differences and affords us all equal opportunities.
In South Africa, a marriage or a civil partnership is only legally valid if it has been registered and solemnised in accordance with the Civil Union Act, Marriage Act and/or Recognition of Customary Marriages Act.
For many years there has been an uproar regarding the recognition of Muslim marriages in South Africa, particularly, Muslim widows that were not able to inherit from their husband’s estates in terms of intestate law, as the term “spouse” refers only to a person in a civil or customary marriage. This created problems especially for the elderly, indigent and illiterate Muslims that believed they had a valid marriage, only to find out on the death of their husbands, they were not entitled to anything.
A turning point in our law was the cases of Daniels v Campbell N.O. and Hassam vs Jacobs N.O. in which the Constitutional Court acknowledged that it was unfair to exclude spouses married according to Muslim rites and that it denied Muslims of their right to equality and freedom of religion.
The Intestate Succession Act has subsequently been amended and a “Muslim Widow” is now considered a “surviving spouse” in terms of the law and can inherit accordingly.
Muslim couples can have a religious marriage as well as a civil marriage. They are also entitled to enter into an Antenuptial contract. This ensures that they are still able to enjoy a traditional ceremony and are afforded the legal recognition of a marriage.