Muslim Judicial Council South Africa – Muslim Personal Law – Frequently Asked Questions

The United ‘Ulama Council of South Africa (UUCSA) is an umbrella body comprising of major Muslim theological formations in South Africa.

It was established in 1994 to provide a unified ‘ulama’ response to national issues that impact on the Muslim populace of South Africa.  This article attempts to help the layperson understand issues related to the recognition of Muslim marriages in a simple question and answer format.

Members of the United Ulema Council of South Africa (UUCSA) are:
•    The Muslim Judicial Council (MJC)
•    The Sunni Ulama Council (SUC)
•    The Jamiatul Ulama (JU)
•    The Jamiatul Ulama KZN (JUKZN) ***
•    The Sunni Jamiatul Ulama Natal (SJUN)
•    Eastern Cape Islamic Congress (ECIC)
•    Council of Ulama Eastern Cape (CUEC)
QUESTIONS AND ANSWERS

1    What is the Muslim Personal Law (MPL) all about?
The MPL provides for the legal recognition of Muslim Marriages and deals with the consequences that flow from such recognition, such as:
•    Proprietary consequences of a Muslim marriage
•    Divorce
•    Faskh  (Annulment of a marriage)
•    Custody of children
•    Maintenance
•    Dispute resolution
       
2    Why is there a need for the legal recognition of Muslim Marriages?
If a dispute between a Muslim husband and wife presently does go to court, the courts either pronounce rulings in accordance with common law or in accordance with what they perceive to be Islamic law, in which case laws pertaining to Islamic marriages evolve at the sole discretion of the courts. Such law will not only be binding on the litigants in question, but upon all Muslims. A good example for the need of the MPL is the case of Daniels. On the 11th March 2004, the Constitutional Court of South Africa effectively recognized a monogamous Muslim marriage for the purposes of succession. However, in the absence of a Bill, the ruling meant that a wife would inherit according to the law of the country and not according to Islamic Law.

3    What if Muslims do not want to be governed by this Bill?
Muslim couples have the choice to be bound by the provisions of this Act. No one is forced or compelled to register his/her nikah under the MPL.
However, if Muslims do not register their marriages under the MPL they will be forced to invoke the civil law if the matter goes to court in case of a divorce and in all related matters, thereby indulging in a serious transgression of the law of Allah. A civil marriage with the anti nuptial contract as advocated by some Ulama only regulates the property regime of couples. All the consequences that flow from such a contract will be adjudged by civil law, which are in total opposition to the shariah.

4    What are the benefits and implications of the proposed MMA?
As matters currently stand, various Ulama bodies mediate or arbitrate on matrimonial disputes in an advisory capacity. The awards or rulings given by these bodies are not legally enforceable, hence the guilty spouse simply refuses to cooperate or abide by the decisions of the Ulama knowing fully well that they cannot be compelled to do so.
The most important benefit of the MPL is that it will legitimize the invaluable services provided by the Ulama bodies and will grant them the muscle to legally enforce their awards and rulings.
However, if the dispute resolution efforts of the Ulama fail, the MPLwill ensure that courts are bound to pass pronouncements in keeping with shariah rulings embodied in the relevant bill.

5    Will MPL oblige Muslims to go to court each time to have their disputes resolved?
The MPL compels couples to first resolve their dispute via mediation. If compulsory mediation fails, couples have the option of subjecting themselves to voluntary arbitration, the award (ruling) of such arbitration will be final and binding. Most cases would hopefully be resolved at this point, since couples know that if they do not settle their disputes at this level, the matter may go to court. The Ulama have a unique opportunity to assert their rightful authority at this level if matters are handled professionally.  If labour disputes are used as an indicator most cases will be resolved at the mediation level.       

6    If a matter does go to court, will a non – Muslim pass judgement  on an Islamic issue?
Currently, if a matter goes to court, a non Muslim judge may preside over the hearing. He/she may is not bound by an Act that spells out the relevant Islamic Law. The judge may therefore issue a verdict base on common law or based on his or her own interpretation of Islamic Law. However, in the case of the MPL the Bill stipulates that a Muslim Judge or a Muslim advocate with a minimum legal experience of ten years must hear the case. The presiding Muslim judge is obliged to give a ruling in accordance with the provisions of the Muslim Marriages Act.

7    Is there not a possibility that the judge may issue a ruling according to his/her own interpretation of a particular clause in the Act, which may go against the consensus of the fuqahaa?
A unique aspect of the MPL is that it provides for two assessors who shall have specialised knowledge of Islamic law, to assist the judge in formulating his judgement. In the event that the presiding judge does not follow the recommendations of the assessors, such assessors shall state their views in writing which, in the event of an appeal, shall be lodged with the Supreme Court of Appeal. The Supreme Court of Appeal according to the ‘Bill” is further obliged to solicit the views of two Muslim Judicial bodies when hearing the appeal.
    
8    We know that the constitution of our country ultimately decides on all matters. Is it not better to leave matters as they are instead of exposing the shariah to constitutional challenge?
In the S African context the constitution undoubtedly reigns supreme.  Every citizen of this country is bound to conduct his affairs within the parameters set out by the constitution. There is no way that we can live in this country and still choose to live outside the bounds of law. The shariah is open to constitutional attack both in the presence and absence of formal legislation.  The fear that the shariah would be tampered with or diluted by virtue of constitutional court rulings exists even today.  Legislation or non -legislation of MPL will in no way alter or change this reality. However, in the case of the MPL, parties voluntarily choose to be regulated by the Act, thereby making any successful constitutional challenge against it very remote.  Section 15(3) of the constitution provides for the recognition of systems of personal law adhered to by persons professing a particular religion. The fact that the constitution allows you to choose a particular family law system implies that it does recognize the distinct ethos, character and values of that particular system. It will not at one and the same time allow you your own family law system, and then prescribe to you what that law should be.

9    Is the present draft Bill according to the laws of the shariah?
The Bill is made up of three different aspects. It outlines shar’ee laws, it deals with the administration of such laws and it spells out penalties in the case of breaching the laws. The Bill therefore contains both shar’ee aspects As well as purely administrative issues. Take the example of a person wishing to perform haj or umrah. He may only do so if he has a passport and a visa. These are administrative requirements that do have to be met before embarkinf on pilgrimage. In the like manner the prospective couple will have to fulfil certain legal requirements if they choose to register their marriage.  With regards to the legitimacy of setting out penalties in the case of default, such an imposition is an accepted and recognized axiom in Islamic Law.

10    We have been told that the MPL prevents a seventeen year old from making nikah. Is this correct?
The age of majority is eighteen in accordance with the law of the land. This does not mean that a seventeen year old cannot make nikah. He/she is absolutely free to make nikah. They cannot however register their nikah under the MPL until they are eighteen years old.  

11    Has the Bill not made it extremely difficult for a person to take a second wife?

Yes, the requirements set out for taking a second wife are difficult. We have objected to this provision several times but did not succeed to  effect an acceptable amendment. The initial position of some members on the project committee was to outlaw polygamy totally. After intense debate that such a prohibition is absolutely unislamic, they eventually agreed to polygamous marriage subject dictum of ‘adl’ (Having the ability to deal justly with more than one wife) as spelt out in the Bill.       

12    The Bill still has to go through various consultative stages. What if the final version of the Bill is substantially different from the current Bill?
We will review our position. If the Bill changes to the extent that we cannot identify with it we will withdraw our support for it.

Edited by Web Administrator

This piece is taken from the website of the Muslim Judicial Council South Africa.

See on-line at: http://www.mjc.org.za/index.php/muslim-personal-law/36-muslim-personal-law-frequently-asked-questions

9 thoughts on “Muslim Judicial Council South Africa – Muslim Personal Law – Frequently Asked Questions

  1. Kurshid

    Assalaamoualaikum

    Dear Sir,

    i am a divorced lady of 36 yrs.. i have been loving somebody who has never married before of 24 yrs. We have been with each other for three years now and to be frank we were even doing sin.. but then we started getting problem as he was too possessive and was taking a woman to be inferior than man.. so what a man say a woma should always obey.. but still i hv asked many dua to forget him as my life was so miserable but till now i still have feeling for him and i cant live without him..now he has heard that somebody else has proposed me for nikah and he suddenly propose me for nikah too but with many conditions:

    1st of all he said he will nobody not even his mother aware of our nikah later if one day we get a kid then he will have to tell her
    2nd : he is not financially ready to help me and look after me as he is full of debts
    3rd: he wont stay with me he will come to see me only thrice or fourth a week
    4th: he said whatever he has to tell because he will be in nikah with me i will have to obey .. for example.. we were having problem last year as i was not trusting him so we broke up and there is a girl helping him financially then the girl fall in love with him .. then he left the girl and come back to me as we still have feeling for each other.. now he is telling me if he do nikah with me i will never have the right to stop him to call that girl or meet her as she is helping her financially and he want me to trust that.
    he is making condition like : whenever i disobey him anytime or get angry at him he will give me my talaak
    or will scold me.

    he said he will rent a house separately but if ever i will come to see him there people will think bad about me whereas here he is coming at my place regularly not caring if people is talking bad.. he always has a reason to defend himself

    he is always humiliating me in front of people and telling each time that it was a joke as he is jealous when i am giving somebody advice or helping somebody who is in some problem. he said a woman doesn’t have this right.

    once i have seen on his facebook he was sending sexy comment on girls, another time i received message on his mobile telling a girl that he loves her but when i ask him he said it was his cousin who was using his mobile, another event happen when i once saw chat history on his laptop with words he was sending to a girl telling her that he loved her.. all this was when we were still together and he denied that none of it was his..

    to be frank i dnt trust him.. but how come i am trying to forget him but i cant.. i really suffer even i am not feeling happy with him..

    i am confused as i am making duah to forget him as he is not treating me with respect but why is it not possible for me to forget it.. we tried several time to break then after one or tow week we come together again..

    i really dont know if i can accept nikah with conditions with him but i still have feeling but scared that after nikah he will dominate me more.. as he is always saying only a husband has the right to do all..

    what shall i do? please show me a way?

    Reply
  2. kashiefa

    Aslm,

    First of all I just want to say shukran for taking your time to hear me out,I really appreciate it.

    Me and my husband got a lot of differences and this caused us to argue a lot and it got so out of hand that he divorced me 2 times already because the arguments just got too much.

    When he first divorced me it was in a letter and after a week we got together again and had sex.

    The 2nd time was the same because we can’t seem to stay away from eachother and loves eachother very much.

    The last time we started to argue again and this made me sick.I was suffering from stress and went on medication so then I went to a moulana and told him that I want to divorce my husband and told him everything that went wrong in our marriage.so he told me that I can’t divorce my husband because its going to take long and its a long procedure and that he don’t want me to still go through all of that.so he took my husband’s cell number and made an appointment with him to see him.

    I didn’t wanted to divorce but I just couldn’t handle the stress and was very confused at the time and thought that was the only way out.

    My husband on the other hand didn’t wanted to divorce me as well but he only did it because that was my wish and did it because he still loves me.

    So my husband went to see the moulana and agreed that he will talaq me because that’s what I wanted at the confused time and I wanted it out from anger.then the moulana phoned me and told me to come and see him so I went and we went to his house,and he told me that we can talk in his bedroom.so I went and he told me what he and my husband discussed and told me that my husband is going to hurt me,and my husband is cheatin on me,so he asked me (while I had my menses/period) if I’m sure I want the divorce so I was so confused at the time because of all the things he said about my husband and angry and then I said yes so then he told me that I’m free now and under aihda and if me and my husband should hve sex again the talaq falls away so I said but he divorced me 2 times already and doesn’t this mean we can’t get married again?so he said he didn’t know but this is final and we can’t get married again.

    Then after two weeks me and my husband got together again,talked things out,forgave eachother and made up and had sexual intercourse again.

    Now my question is,am I divorced?

    Because what bothers me about this moulena is that he convinced me that my husband is bad for me and is cheating on me wich isn’t true because my husband never cheated on me and the fact that he asked me about our sex life with a smile on his face and how me and my husband would do it and told me about his private life and how he is searching for a wife tht can give him children because that’s his heart’s biggest desire and then I found out that the woman that has a child out of wedlock with my husband way before my time and who used black magic to get me and my husband apart goes to that moulena and went to that moulena many times before we went to the moulena and talked bad about us and made up lies.

    So I asked a friend if me an my husband is really divorced so he said no and that I should ask the moulena wich talaq he gave me and it depends on the talaq.so when I went to the moulena again he told me that a talaq is a talaq and u just get one talaq and me and my husband is divorced,its final and said I must stay away from my husband before I get pregnant and I was devasted because me and my husband wants to be together forever and loves eachother unconditionally.

    Am I really divorced?tamaalf for spelling faults and sounding dum but I converted to islam and don’t know much yet but I’m learning everyday🙂 shukran.

    Reply
  3. Tanveer

    Assalamo aliqum
    I want to highlight an important issue, recently i along with my few colleagues visited South Africa Cape Town. we resided in a Back Packer named Phola Chillax 112 Long Street Twinell Building 5th floor tel no 0214221751. The owner of Back Packer was a Muslim Named Ali as he told me.In the TV Lounge of back packers they have a large Portrait of an Arabic old man which they claim to be of Holy Prophet (PBUH) (NAAOZOBILLAH). Unfortunately i was unable to do any thing to guide them or to destroy it to my bad luck and weakness (may Allah forgive me for this sin). Now as im back to my place i am felling very guilty and very disturbed. therefore i urge the MJC to take necessary measures to remove/destroy that portrait and teach those people to refrain from committing such sin. I will be really Grateful to MJC for helping me in this issue. May Allah guide us and be with us in All difficulties and protect us from all evils.

    Reply
  4. tawab

    GIFT OF THE NEEDEY. Very
    Important
    Notice –

    Attention
    Muslim
    Public !!! An organisation
    called “Gift of
    the Needy” run
    solely by some
    Mr Faiaz Magid has
    lots of question
    marks
    hanging. Are you aware that mr magid main income comes from the charity fund ? Mr Faiaz and his son’s and sometimes even one of his ex-wifes travels overseas on holidays. He travels abt three times a year on holiday. Plus He goes to international foot-ball games. He further has two new model sport cars which were paid for in cash almost 500.thousand rand. Mr Faiaz has some very interesting explanations which aint true when asked abt how he affords his lavish life. The
    public is
    cautioned
    about this organisation
    and its
    activities of
    collecting
    Zakaat monies
    as there are many doubts and
    unanswered
    questions. Plz be aware that mr Magid may be living a lavish life on your strength. Any one or any business who has given any monie to gift of the needy is adviced to ask mr Faiaz for a refund and Pls
    only hand over
    your Zakaat
    and other funds to
    reputable/
    reliable
    organisations or you may hand it over to the poor and needy personally.

    Distribute this
    info as widely as possible for
    the benefit of
    our
    community and for the sake of Allah.
    May Allah reward you for distribution of this message.

    Reply
    1. giftoftheneedy

      I am Faiaz Magid, the Director of the NP0 Gift of the Needy, an empowerment and social upliftment organisation that serves the destitute and those in need. I wish to point out that my organisation and myself were victims of defamation in 2012 but the claims made are totally without merit. The flyer that stated ‘spread the message for Allah’s pleasure’ contained no names and is clearly an act of cowardice. Gift of the Needy’s projects are personally supervised by an Aalim who can be contacted for verification. We comply with all requirements as per NPO status and are fully transparent and accountable. Our many beneficiaries of service is a testament of the selfless dawah work we do. If you wish to contact me please feel free to do so. My cell no – 0 73 125 1255, office no -031 2713102. Also log on to our website http://www.giftoftheneedy.com for pictures and videos of our many local projects as well as our Refugee Relief Efforts in Greece. I thank you.

      Reply
  5. tahera

    Slms. My husband. Was forced to give me triple talaq in one sitting several years ago. I did not persue the seriousness of this and did not have. Knowledge on this subject. Until years later. We have 4 kids. Since he has come from haj,it has become an issue as to. Wether we are. In nikah or talaq. We are now seperated as the families have intervened. We do want to put our family bak together. Pls kindly advise me my marriage status. Jazakallah

    Reply

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