By Sheri Breslaw

The fundamental shift that occurred when South Africa became a constitutional democracy in 1994 heralded changes in all areas of the law. Significant changes were made, and continue to be made, in family law. By way of example, the Recognition of Customary Marriages Act 120 of 1998 gave legal recognition to marriages contracted in terms of African customary laws, thereby protecting the spouses of these potentially polygamous unions.

The Children’s Act 38 of 2005 brought about significant changes and improvements to the rights of children, the rights of fathers of children born out of wedlock, and the rights of other ‘interested parties’, who previously did not enjoy such rights. The Civil Union Act 17 of 2006 has given same-sex couples the opportunity to marry and be afforded the same rights in law as heterosexual couples.

Where South African statutory law is still fundamentally lacking is in the recognition of the rights of and protection of parties to marriages contracted only in terms of Muslim law. For couples married in accordance with civil law, marriages and divorces are dealt with under the relevant statutes, namely the Marriage Act 25 of 1961, the Civil Union Act and the Divorce Act 70 of 1979. No provision is, however, made in statutory law for the recognition of marriages concluded in terms of Muslim Shariah law. Previously the courts have held that this was due to the potentially polygamous nature of Muslim marriages.

However, it is not as if this shortcoming in the law has not been noticed. The status of Muslim marriages has, since 1990, been the subject of continuing investigation by the South African Law Reform Commission (SALRC). Despite the efforts of the SALRC, as well as the draft Muslim Marriages Bill, which was published as long ago as 2000, there has been no change to statutory law as it stands.

So where does that leave attorneys when they are consulted by clients who want to know what their rights – or lack thereof – may be? Fortunately, it seems that while the legislature has lagged behind, the courts have not. In determining disputes between parties who were married by Muslim law alone, the courts have had to rely on the development of case law in order to come to the assistance of parties involved in litigation.

In terms of Muslim law, the system of community of property is not recognised as the default principle, as it is in civil law. Instead, Muslim marriages are deemed to be marriages out of community of property, excluding the accrual system. Where both parties to a marriage have contributed assets to that marriage, each retains ownership of those assets, both during and on termination of the marriage. The estate is thus considered to be one in which separate assets are mixed, but are not merged into one estate.

The non-tangible contribution made by one partner to an estate, such as the raising of children or the maintenance of the home, are under Muslim law not deemed to be the equivalent of tangible contributions. This is therefore where one of the greatest difficulties lie for spouses when divorcing. In terms of Muslim law there is no possibility of redistribution or of a universal partnership claim, as would be the case in civil law.

To demonstrate how South African case law has assisted in developing this area of the law, it is useful to start with the case of Ismail v Ismail 1983 (1) SA 1006 (A), where it was held that marriages solemnised under Islamic law do not enjoy the same status of marriage in civil law because these unions are potentially polygamous and therefore against public policy.

That same year, however, in the case of Moola and Others v Aulsebrook NO and Others 1983 (1) SA 687 (N) the judge was a bit more charitable and held that Muslim marriages are putative marriages. Where this assisted at the time was that the children born of such a union were deemed legitimate. The Children’s Act has since provided that children born of Muslim marriages are legitimate, as the Act specifically includes religious marriages in the definition of the word ‘marriage’. The courts then seemed to take a step back in the case of Solomons v Abrams 1991 (4) SA 437 (W) by deciding that a putative marriage could not come into existence unless the parties went through a marriage ceremony performed by a marriage officer as defined in the Marriage Act (which would not include an imam).

In S v Makwanyane and Another 1995 (3) SA 391 (CC) the Constitutional Court, for the first time, recognised the need to take account of the traditions, beliefs and values of all sectors of society, as well as the fact that the Constitution expressly acknowledges the situation where legal pluralism based on religion can be recognised.

Two years later in the case of Ryland v Edros 1997 (2) SA 690 (C) it was held that, since a Muslim marriage is a contract from which certain proprietary obligations flow, it provided reason enough to impose some of the consequences of civil marriage on a Muslim marriage, chiefly the obligation of maintenance. Where the decision stopped short however, was in regard to the patrimonial consequences of the marriage. The judge was not prepared to make a ruling that the wife was entitled to a share of the husband’s estate.

In Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality intervening) 1999 (4) SA 1319 (SCA) it was held that a legally enforceable duty of support will arise from a marriage in accordance with the tenets of a recognised and accepted faith, and that the ‘inequality, arbitrariness, intolerance and inequity’ that would result from not following this approach was inconsistent with the new ethos of a constitutional democracy. In this case, which involved a claim made by a spouse in a Muslim marriage against the deceased estate of her spouse, the court emphasised that the crucial question was whether the relationship between the deceased and the dependant was one that deserved recognition and protection at common law.

In the case of Daniels v Campbell NO and Others 2004 (5) SA 331 (CC) the Constitutional Court held that a Muslim spouse in a monogamous marriage had the right to inherit and the right to claim maintenance from a deceased spouse who had died intestate. It was further determined that the word ‘spouse’, as contained in the Intestate Succession Act 81 of 1987, as well as the word ‘survivor’, as contained in the Maintenance of Surviving Spouses Act 27 of 1990, should apply to spouses married in accordance with Muslim law. In the case of Hassam v Jacobs NO and Others 2009 (5) SA 572 (CC) the Constitutional Court went further and held that this right extended to polygamous Muslim unions as well.

The issue of maintenance was dealt with in the case of Khan v Kahn 2005 (2) SA 272 (T) where it was decided that partners in Muslim marriages, irrespective of whether such marriage was monogamous or polygamous, owe each other a duty of support and therefore have the right to claim maintenance from one another in terms of the Maintenance Act 99 of 1998. In the case of Mahomed v Mahomed 2009 JOL 23733 (ECP) this right to claim maintenance was extended to include a claim for interim maintenance in terms of r 43 of the rules of the High Court, relating to applications brought by a spouse pending the finalisation of divorce proceedings.

In Du Toit v Seria 2006 (8) BCLR 869 (CC) the issue before the court was whether there existed a universal partnership between spouses married in terms of Muslim law. The party wishing to claim that such a partnership existed, Mrs Du Toit, took the matter to the Constitutional Court. Unfortunately, by virtue of the fact that the constitutional issues relating to the recognition of Muslim marriages had not been specifically pleaded in the initial action, which she had brought in the lower court, the appeal was dismissed and no finding was made.

In the case of Butters v Mncora 2012 (4) SA 1 (SCA) the Supreme Court of Appeal recognised and confirmed the existence of a universal partnership between a couple who had lived together for 20 years. The court awarded the claimant 30% of the other party’s estate. The court ruled that, while cohabitation does not give rise to special legal consequences, a cohabitee can invoke a remedy in private law which, in this case, was based on the law of partnership. But the Bench observed that it is not possible to establish a norm for cohabitees, as could be done for spouses, and that a universal partnership is not the same as a marriage in community of property.

The issue of a spouse’s claim to the other spouse’s pension interest came before the pension funds adjudicator in the case of Tryon TY v Nedgroup Defined Contribution Pension and Provident Funds and Another (unreported case no PFA/GA/8796/2011/TCM). The adjudicator had to deal with the question of whether a spouse in an Islamic marriage can share in the other spouse’s pension interest on divorce. The adjudicator ruled that it is possible for a spouse married and divorced in terms of Islamic rights only to share in the other spouse’s pension interest on divorce. The member spouse’s retirement fund would have to make payment to the non-member spouse if the agreement reached between the spouses regarding the division of pension interest states as much and has been made an order of court.

In terms of the Civil Proceedings Evidence Act 25 of 1965 as well as the Criminal Procedure Act 51 of 1977, a spouse to a Muslim marriage may not be compelled to testify in civil or criminal proceedings against his or her spouse, as is the case with spouses who are civilly married. Similarly, the Transfer Duty Act 40 of 1949 exempts from duty property inherited from the deceased estate of a spouse married in terms of Muslim law. The Estate Duty Act 45 of 1955 also provides an exemption on property accruing to a surviving spouse to a Muslim marriage from the estate of the deceased spouse.

While it is regrettably obvious that the South African legislature has a long way to go in terms of equalising the rights of Muslim spouses, it is equally apparent that the courts have made every endeavour to make use of the Bill of Rights, as well as the general ethos of the country, where possible, to extend the rights of Muslim spouses so as to afford them the same rights as parties to a civil or customary union.

Sheri Breslaw BCom LLB (Unisa) is an attorney at Fairbridges in Cape Town.

This article was first published in De Rebus in 2013 (Dec) DR 30.