The Law Commission of South Africa is in the process of drafting legislation that will recognise Muslim customary marriages and which will provide for their matrimonial consequences. Pending this new legislation, Muslim customary marriages are not recognised and spouses are regarded as unmarried. Each spouse, therefore, has separate and full contractual capacity.
The result of not being recognised under the Marriage Act, 25 of 1981, meant that spouses were not able to inherit intestate, and were not entitled to a fair distribution of property upon the dissolution of a marriage in terms of matrimonial legislation.
Current case law and intestate succession
Despite this, the South African courts began a process of shifting these laws through a number of cases such as Daniels v Campbell NO and Others 2003 (9) BCLR 696 (C) and Hassam v Jacobs NO 2009 (5) SA 572 (CC).
In the first of these, the court found that a surviving spouse in a Muslim marriage should, in fact, be considered a ‘spouse’ under the Intestate Succession Act, 13 of 1934, and as a ‘survivor’ as defined in the Maintenance of Surviving Spouses Act, 27 of 1990. As a result of this finding, the applicant was entitled to inherit property from her deceased husband’s estate. Prior to this judgment, only those married under civil law were granted rights under these Acts.
Taking this a step further, the second case found that both wives in a polygamous Muslim marriage were entitled to inherit from their husband’s estate.
Recognition of Muslim unions
From 1 May 2014, an Imam, who has been registered as a marriage officer in terms of the Marriage Act, may solemnise a Muslim marriage and the proprietary consequences will be the same as that of a civil marriage in terms of the Marriage Act. This means that the marriage will be in community of property unless the spouses entered into an antenuptial agreement, excluding the community of property regime, with or without accrual.
It is important to note, however, that this does not mean all Muslim marriages are now valid. Only marriages solemnised before a registered Iman will be regarded as valid, while others will be regarded as “unmarried”.
An Iman who is a registered marriage officer may also not marry any person who is already a party to any Muslim marriage, whether registered or unregistered.
For conveyancing purposes, a marriage certificate will be required as proof of a Muslim marriage, and the consequences this has on property ownership will then be the same as with other civil marriages.
Written by Wessel de Kock