Politicians and the Minister of Home Affairs are to be commended for their efforts to have Muslim marriages recognised. However, their sometimes-excessive enthusiasm has occasionally turned the matter into a political contest.
The Department of Home Affairs oversees the formalisation and registration of civil marriages, customary marriages, and same-sex marriages (civil unions). For nearly five decades, civil marriages in South Africa have been governed … by the Marriage Act 25 of 1961. Customary marriages are recognised through the Recognition of Customary Marriages Act 120 of 1998, which came into effect in November 2000. The Civil Union Act 17 of 2006 further expanded these provisions.
Under South African law, three types of marriages are recognised: Civil marriages, civil unions, and customary marriages. Civil marriages have always been fully protected by law, and now same-sex and customary marriages enjoy similar protections. Religious marriages are acknowledged by courts only in specific instances, while domestic partnerships lack any legal recognition.
Although the Nikah (Muslim wedding ceremony) is viewed as a legitimate marriage within Islam, it is classified under South African law as a religious ceremony with no legal status. Consequently, couples who enter only a Nikah without a civil marriage are considered ‘unmarried’ in the eyes of the law.
Muslim couples in South Africa can choose to enter into a civil marriage in addition to their Islamic marriage to ensure full legal protection under South African law. It is important to note that this recognition pertains to South African legal implications, not Islamic law.
There should be a positive movement towards recognising Muslim marriages fully in the future. However, until that happens, it is advisable for Muslim couples to enter into a civil marriage alongside their Islamic marriage to ensure they receive full legal protection.
Confusion has arisen among married Muslim couples regarding the status, recognition, and legal implications of their marriages due to recent communications from the Al Jama-ah political party, the Minister of Home Affairs, and the Department of Home Affairs.
First, the Al Jama-ah political party has encouraged Muslim couples to present their Nikah (Islamic) marriage certificates to Home Affairs, where a marriage certificate will be issued after a civil ceremony conducted by a marriage officer.
Second, the Department of Home Affairs has instructed its marriage officers to issue marriage certificates to Muslim couples under the Recognition of Customary Marriages Act.
Finally, the Minister of Home Affairs has directed that Muslim marriage certificates be issued to Muslim couples.
This has only added to the confusion, especially in the conveyancing sector, where legal practitioners are uncertain whether Muslim clients are married in or out of community of property.
The current legal status is as follows:
A Muslim couple with only an Islamic (Nikah) certificate is considered ‘unmarried,’ and the Nikah has no automatic proprietary consequences.
If a Muslim couple holds both an Islamic (Nikah) certificate and marriage certificate issued by the Department of Home Affairs, their proprietary consequences will depend on whether they signed an antenuptial agreement before the issuance of the marriage certificate: They will be out of community of property if they did, and in community of property if they did not.
Conveyancers should request the following documents from a Muslim client:
In transfer documents, parties should be recorded as follows:
With both Islamic (Nikah) and Home Affairs marriage certificates: Names of both spouses, ID numbers, married in community of property to each other.
When handling a transfer where the title deed shows the registered Muslim owner as unmarried or married according to Muslim rites, the conveyancer should request the following documents from the Muslim client:
If the registered owner provides only an Islamic (Nikah) certificate, the conveyancer will cite the transferor as reflected in the title deed. If the registered owner presents both an Islamic (Nikah) marriage certificate and a Home Affairs marriage certificate along with an antenuptial contract, the conveyancer will cite the transferor as married out of community of property. If both certificates are provided without an antenuptial contract, the conveyancer will cite both spouses as married in community of property to each other.
It is hoped that the passage of the new Marriage Bill, 2023 and amendments to the Matrimonial Property Act 88 of 1984 will streamline the process for conveyancers dealing with religious marriages.
Fazel Bulbulia BProc (UKZN) is a legal practitioner, conveyancer, and notary public at Mohamed Hassim Attorneys in Durban.
This article was first published in De Rebus in 2025 (Jan/Feb) DR 30.
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