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
• Faskh (Annulment of a marriage)
• Custody of children
• 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.