Abstract
This chapter provides a comprehensive exploration of the legal status of various marriage forms within South African legislation, tracing its historical evolution from colonialism through the era of segregation and apartheid policies. The preference for monogamous marriages, exclusive recognition of such unions, and the marginalisation of potentially polygamous systems, including African Customary and Muslim marriages, laid the foundation for a complex legal landscape. The examination begins with an exploration of African Customary Law and the Recognition of Customary Marriages Act 120 of 1998 (RCMA). This sets the context for understanding challenges faced by African women under customary law and how the RCMA may not have delivered the transformative impact envisioned. Customary marriage practices, involving quasi-contractual agreements and understandings, are contrasted with civil and religious marriages, offering insights into the administration of marriages based on cultural norms. To contextualise the lack of recognition of Muslim marriages and Personal Law within the broader constitutional framework, the chapter explores the Muslim Marriages Bill (MMB). It raises a fundamental question: can the MMB effectively address the unique needs and interests of Muslim women? The subsequent investigation probes the debates surrounding the Bill, examining arguments both in support of and in opposition to its implementation. The analysis reveals a disconcerting pattern of gender inequality and legal complexity within South African legislation concerning Muslim marriages.
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Notes
- 1.
African Customary marriages acquired full legal recognition under the 1996 Constitution. However, Muslim marriage was not afforded any recognition.
- 2.
- 3.
‘Lobolo means the property in cash or in kind, whether known as lobolo, bogadi, bohali, xuma, lumalo, thaka, ikhazi, magadi, emabheka or by any other name, which a prospective husband or the head of his family undertakes to give to the head of the prospective wife’s family in consideration of a customary marriage’ (RCMA 1998, p. 1).
- 4.
Girls Not Brides is a partnership of civil society organisations that aim to end child marriages and enable girls to reach their full potential.
- 5.
In Chap. 9 the notion of a tafwid clause will be discussed in detail. However, it is important to note in fiqh (Islamic jurisprudence) a husband has unilateral power to divorce his wife. Men are allowed to pronounce ṭalāq (divorce) a maximum of three times in order to end a marriage. A tafwid clause in a nikāḥ (understood as an Islamic marriage, technically it means contract) is an agreement whereby a husband delegates one of his ṭalāqs to his wife. This means a woman will be able to divorce her husband without his permission or the permission of an Islamic body. Such a clause is very powerful for women and has the potential to create some equality between the spouses (the delegation of one ṭalāq still means a husband has two times in which he can pronounce ṭalāq and divorce his wife and, thus, still maintain an upper hand in the relationship).
- 6.
See further Women’s Legal Centre Trust v President of the Republic of South Africa and Others, Faro v Bignham N.O. and Others, Esau v Esau and Others (22481/2014, 4466/2013, 13877/2015) [2018] ZAWCHC 109; [2018] 4 All SA 551 (WCC); 2018 (6) SA 598 (WCC) (31 August 2018).
- 7.
See further: sections 9, 10, 15, 28, 31, and 34 of the Constitution.
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Mukaddam, F. (2024). Compromising Legislation: Upholding the Patriarchy. In: Muslim Women between Community and Individual Rights. Gender, Justice and Legal Feminism, vol 4. Springer, Cham. https://doi.org/10.1007/978-3-031-54614-3_6
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