Arising out of the discussions at a recent workshop organised by the Muslim Personal Law (MPL) Network, it was clear that Muslims in South Africa, like other non-Christian communities, continue to remain in a precarious position regarding the regulation of their marriages. In the absence of specific legislation regulating Muslim marriages, many couples either marry only in a religious process or in two separate and often dissonant systems – one religious and the other civil. This dissonance is borne out of the fact that South African legislation does not provide legal recognition for Muslim marriage (nikah) and divorce (talaq). Therefore nikah and talaq do not function in the same way as marriage and divorce in South African law, write the MPL NETWORK CORRESPONDENTS.
One of the topics that participants at the workshop held at the University of Cape Town collaborated and debated on, was the possibilities for entry into a Muslim marriage in a South African context.
Academic Farhana Ismail, who is also a premarital counsellor and one of only three female Muslim marriage officers in the country, began by highlighting the role of one-on-one premarital counselling amongst Muslims entering into a nikah. This process, she said, “creates an opportunity for negotiations around, and flexibility concerning, marital roles, responsibilities and issues of finance, and is an option to prevent disputes before entering into a nikah. It manages individual couples’ interests, desires and expectations, outlines the foundation of the marriage, and ideally should culminate in a negotiated Islamic marriage contract. The flexibility allowed in the Islamic jurisprudence of marriage is often reflected, both in historical settings and today, by the varying contractual clauses that couples include in their marriage contracts.”
Here Ismail, who is affiliated with Masjidul Islam in Johannesburg, specifically referred to clauses on the amount and type of dower or mahr (a gift which the wife is entitled to receive from the husband either immediately or can be deferred to a later date); a delegated talaq (refers to the termination of the marriage bond usually by the husband who can also delegate it to the wife or a third party as a negotiation prior to a nikah); other dissolution options such as khul’( a form of dissolution of marriage where a wife seeks a divorce by offering a compensation to the husband) and faskh ( judicial dissolution of a nikah by religious authority structures); education and career options; dispute resolution processes like counselling and mediation; financial and marital responsibilities, and consequences in the instance of polygyny. She explained that while some clauses such as a delegated talaq or an immediate mahr should be binding by virtue of appearing in the nikah contract, others such as financial consequences in the instance of a talaq, faskh or deferred mahr, are not enforceable without state backing.
In addition, some negotiations and contractual decisions taken by a couple cannot be regulated at all.
Attesting to this, Khadeeja Bassier, an actuary and board member of Claremont Main Road Masjid, provided personal insights into her recent experience of premarital negotiations at her masjid. The clauses in her contract, she admitted, could not all be regulated, but certainly assisted in managing expectations and avoiding unnecessary conflict. She described how she and her husband, prior to nikah, discussed and negotiated shared financial obligations, flexibility of roles, caring for ill parents, and even arbitrary but potentially conflictual issues such as where special days like Eid would be spent.
Clearly Muslim groupings have different approaches to providing couples with options upon entering a nikah. Attorney, University of the Western Cape lecturer, and Muslim Judicial Council (MJC) imam Muneer Abdur Raouf, explained that generally, prospective couples attend group marriage classes as the premarital counselling option provided by the MJC.
He provided a step-by-step account of the current processes and protocols in place at the MJC for entering into a nikah and seeking to register a marriage under the South African Marriage Act with an imam marriage officer.
Raouf described three possible scenarios at the MJC for entry into a Muslim marriage. The first, which is most often practised, is to enter into a nikah ceremony only, without any counsel by the imam and without any negotiated agreement in place. The second is to enter solely into a nikah after being advised by the imam on options of choice in the form of an agreement that the MJC called an “imam contract” (what Ismail referred to as the Islamic marriage contract), and the third is to enter into the parallel civil system of marriage and can be done with or without the ‘imam contract’. Here, the couple negotiates an antenuptial contract (ANC) which specifies the matrimonial property regime, exclusions of assets and any financial agreements, and obligations governing the marriage.
“This is usually drawn up by an attorney and presented to the imam marriage officer who will solemnise and register the marriage as a civil marriage only after the nikah ceremony has been concluded. Both ceremonies cannot happen at the same time because the solemnisation ceremony requires the couple to hold hands,” Raouf said.
Although the ideal scenario would be for individual couples to negotiate antenuptial contracts with their attorney and negotiate an “imam contract” with their imam marriage officer so that they have two negotiated contracts – one religious and one civil – in South Africa most imams do not follow this route. This route too, as illustrated later, is fraught with challenges.
In terms of the antenuptial contract, Raouf stressed that while some MJC members believe that the couple can agree to any one of three marital property regimes: community of property, antenuptial contract with accrual, and antenuptial contract without accrual – “the MJC’s internal fatwa council had determined that MJC marriage officers can only register a marriage under the Marriages Act when the chosen regime is ANC without the accrual system.” Anything else must be referred to another marriage officer outside of the MJC theological body.
Discussions among participants focussed on the ethical role of ulama (religious scholars) and premarital counsellors to provide adequate choices for Muslim women in negotiated Islamic marriage contracts, particularly in terms of their civil options for different property regimes, their fiqh (Islamic jurisprudence) options for exiting a marriage and the possible protections available in Islamic law but not in South African civil law in instances of polygyny.
Evidence that young wives and divorcees are not adequately counselled even prior to nikah, and do not understand their religious legal options in exiting a marriage was clearly articulated the next day by a young divorcee woman who participated in the community focus group discussions. “After all the abuse and infidelity I didn’t ask the MJC for a faskh (religious judicial separation) because I thought you don’t get maintenance if you get a faskh,” she said. This, Ismail explained, was not how the consequences in the case of a faskh should play out.
Ismail explained that an effective premarital counselling process should normally take around five to seven sessions with individual couples because each circumstance was different. She argued that religious legal options for entry into and exit out of an Islamic marriage be clearly discussed and that the Islamic contract be used as an option to prevent or at least minimise disputes in a marriage. “The contract and the premarital process doesn’t just manage incongruent expectations of marriage but also educates couples on alternative dispute resolution processes like mediation and explains other religious dissolution processes and procedures and the form and duration of iddah (a woman’s waiting period at the dissolution of a marriage), so that choices at termination are informed,” she said.
Participants at the workshop also debated the challenges of the two systems of entering into a marriage. Attorney Hoodah Fayker questioned the capacity of the “imam contract” to regulate marriages. “When your marriage ends, the imam contract is not going to help you. The ulama cannot enforce the terms of imam contract and going to court will be a long drawn out process,” she said.
Participants further pointed out the flaws in the appointment of Muslim marriage officers. Although imams had clear guidelines in terms of registering a marriage under the Marriages Act, such as ensuring that certain paperwork was in place and asking the couple if either of them had any “impediments” such as another spouse in terms of the Act, there were no similar clear and enforceable guidelines in terms of how to counsel couples and conduct nikahs.
Raouf was asked repeatedly: “Do imam marriage officers ask when they register a marriage if a man has another wife or wives, not in terms of the Marriages Act, but in terms of Islamic law? Is the term ‘impediment’ as is used in the solemnisation ceremony in terms of South African law understood in the same way if he is married in terms of religious law?”
Clearly the existence of Muslim marriage officers does not solve the issue of non-regulation of Muslim marriages. As Fayker summarised: “There is a lack of consistency, some imams still think registration is un-Islamic, it doesn’t allow for polygyny, and the Islamic rules for maintenance are not in line [with existing legislation]”.
The non-alignment between the two systems of marriage – religious and civil – becomes more stark in instances of polygyny.
Ismail cited an example of a polygynous union where a previous long standing monogamous marriage, registered under the Marriages Act, was in place.
“Concessions and choices provided by Islamic law which might be in the nikah contract are not necessarily recognised under South African law,” she argued.
“Any consequences to polygyny in place in a nikah contract such as the husband reimbursing the first wife for any financial contributions she made during the marriage – known as nafaqa -and restructuring the marital property regime to include another wife cannot be regulated in terms of existing South African legislation. This is because the Marriages Act doesn’t make provision for multiple spouses.”
The government’s decision to move the issue of Muslim marriages out of the ambit of the department of justice and into that of the department of home affairs, through the registration of Muslim marriage officers, has not provided solutions to the problems arising out of the non-regulation of Muslim marriages in South Africa.
A negotiated Muslim marriage contract provides for flexibility of choice in terms of Islamic law, and, if done properly, provides couples with the best possible options. However, the lack of will and consistency on the part of imams, who form the majority of Muslim marriage officers, to counsel couples adequately in terms of religious law, means that Muslim women’s choices on entering into a nikah will continue to be limited whether they’re married in the civil system or not.
Even in cases where couples enter into parallel marriage systems, where both a nikah or imam contract and an ANC are properly negotiated, there is no guarantee that the clauses of the nikah/imam contract which are not covered by existing legislation will be enforceable in South African courts.
The Muslim Personal Law (MPL) Network is a loose national collaborative network of academics, lawyers, counsellors and activists all working towards the goal of justice in the Muslim family.
The views expressed in this article are the author’s own and do not necessarily reflect the editorial policies of The Daily Vox.