Marriage in Islamic Law is defined as a civil contract that creates rights and duties between the parties that enter into the marriage. Hence the various elements of a contract have to be present for a marriage to be concluded. The elements of the marriage contract are as follows:

• The parties must have the capacity to contract.
• The parties must know and comply with the formalities of the contract, such as the presence of the witnesses, guardianship and the payment of the dower.
• Offer and acceptance need to take place at the same instance, hence parties must know the place where the contract will be concluded.
• The parties must have knowledge and be in agreement on the essential elements of the contract. Hence the parties should understand the nature of the contract of marriage and the consequences which flow there from. The consequences, which flow from the marriage contract, are set out in the Shariah/Islamic Law, unless the parties stipulate otherwise in a written contract.

There is no need for a written contract for the marriage to be valid. A verbal offer and acceptance suffices. Parties are however allowed to stipulate conditions that govern their marriage in a written contract that binds both parties. Where there is no written contract, which is mostly the case in Cape Town, then the rights and obligations of the parties as well as the matrimonial property regime that will govern the marriage is determined by Islamic Law. In terms of Islamic Law the marriage would be out of community of property with both parties being allowed to acquire assets or debts in their own name. Furthermore, it is common cause that one of the main consequences that flow from a contract of marriage is that the husband becomes obliged to maintain his wife during the subsistence of the marriage and for three months after the marriage has been repudiated. This duty of support exists irrespective of what assets the wife owns or what she earns, which she is not required to share with her husband. This duty of support extends to the children as well irrespective of whether the parties are divorced. Maintenance involves the provision of food and drink, clothing, accommodation, domestic assistance if she was habituated to use luxury, domestic appliances and medical expenses. (See page 11 of Reference Document by Ebrahim Moosa used in Rylands v Edros 1997(2) SA 690 ( C)) This provision of the Islamic marriage contract was upheld in the Rylands case. This duty to maintain is not a reciprocal duty of support. Hence the wife in an Islamic marriage owes no duty of support to the husband and children and where she has not been maintained or where she has maintained her husband and children, then a debt accrues to her. The court in the Rylands case allowed the wife to claim up to three years arrears maintenance on divorce of the parties. The reason I discuss this particular incidence of the marriage contract is because it becomes important in so far as it relates to duty of support claims like that which was brought by applicant in the Amod case. If Mrs Amod had died in a car accident, would Mr Amod have been able to rely on a duty of support claim against the MMF if Mrs Amod owed no such duty to him in terms of the marriage contract. The question of duty of support also becomes relevant when I later discuss the possible matrimonial property systems which should govern Muslim marriages. Should a system of in community of property be adopted, then we cannot only have a unilateral duty of support being upheld. Hence the system of nafaqah would effectively be abolished and both parties would have a reciprocal duty to support each other.

Despite the fact that Muslim Marriage ceremonies complied with various formalities, these marriages were not recognised as valid marriages by our law for predominantly two reasons:

• The ministers of religion/ Imams who presided over theses marriages were not designated marriage officers in terms of the Marriage Act 25 of 1961; and
• Our courts held that because these marriages were potentially polygamous they were contrary to public policy and therefore not valid marriages. Ismail v Ismail 1983(1) SA 1006(A)

The latter common law reasons was overturned with the Rylands decision which used constitutional principles to challenge the notion that Muslim marriages were contrary to public policy because of their potentially polygamous status. (See page 28 of the Judgement) With respect to the question of Imams as marriage officers, it should be noted that because of the unjust political system in the past most Muslim ministers of religion did not have themselves designated as marriage officers under the Marriage Act. As the political and constitutional dispensation has changed somewhat, Imams and religious officers should no longer have the same reservation about having themselves registered as marriage officers. Hence should Imams be designated as marriage officers, all marriages presided over by them would be regarded as valid marriages provided the other formalities of the Marriage Act are complied with. This would be a simple way of dealing with the issue of non-recognition but it would also mean that those marriages would now be regarded as any civil marriage with the concomitant consequences like in community of property applying unless stipulated otherwise. The parties could obtain dissolution of the marriage through the institution of talaq, but this talaq would not be recognised in terms of South African civil law. The parties would have to institute civil divorce proceedings in the family court or the High court to have the dissolution of their marriage recognised. This is what presently happens to the minority couples who married in terms of MPL but then later had their marriages registered at court. Their marriages are recognised as valid marriages in terms of South African Law, and they are recognised as spouses for the purposes of the Intestate Succession Act 89 of 1987, the Maintenance of Surviving Spouse Act 27 of 1990 etc. Hence if parties want their estates to devolve according to Islamic law on their death they would have to stipulate so in their wills.

2. ISSUES RAISED IN THE SALC DISCUSSION PAPER

2.1 Choice of Marriage System

The South African Law Commission's Discussion Paper on Islamic Marriages and Related Matters hereafter referred to as "the Paper", proposes that couples be accorded the right to choose the marital system which is compatible with their religious beliefs and the Constitution. (see page 10 of the paper) Immediately after this proposal the paper then continues to stipulate that examples of the standard clauses to be incorporated in a marriage contract, are set out elsewhere in the paper. It is not very clear what is actually being suggested by the Paper for the following reasons:

• The choices available to couples are not clearly stipulated. Mention is made of clauses in a marriage contract, but it is not clear whether this is a pro forma contract introduced in terms of the new act recognising Muslim marriages or whether it simply is a n individual contract which parties have to conclude themselves. As mentioned earlier, the Muslim marriage is a civil contract which requires no written agreement for its validity as it is governed by Islamic Law of marriage. Parties to a marriage can however draw up their own written contract, but this presumes that they have a thorough knowledge of the Muslim Law of Marriage, that they have access to an attorney who could assist them in drafting a contract and that both parties enjoy equal bargaining power when entering a marriage contract.
• On page 14 of the paper it is suggested that a marriage contract may contain a provision establishing a Muslim Personal Law system and cites section of the Recognition of Customary Marriages Act 120 of 1998 as an analogous situation. This analogy lends to even greater confusion as section 6 of the Recognition of Customary Marriages Act 120 of 1998 deals with the capacity of the wife to contract and to acquire assets, which has never been a contentious issue in MPL. Women in Islamic Law have always been allowed to enter contracts and to acquire assets. It is submitted that the statute and not individual marriage contracts should contain provisions establishing a MPL system of marriage. This would be similar to the approach followed in the Recognition of Customary Marriages Act 120 of 1998.
• Hence the choices available to parties would be to have their marriage concluded in terms of the Marriage Act 25 of 1961 and their marriage would be treated like any other civil law marriage OR to conclude their marriage in terms of a statute which recognises and regulates Muslim marriages and divorces. The latter statute could provide for pro-forma marriage contracts.

2.2 Formalities applicable to New Marriages

2.3 Existing Marriages

I do not deal with question of how existing marriages should be dealt with in the new act as another speaker discusses this.

2.4 Choice of Matrimonial Property Regime

The Paper alludes to choice of matrimonial systems for existing Muslim marriages but does not commit itself to any matrimonial property regime for future marriages entered into after the new statute. Unlike section 7(2) of the Recognition of Customary Marriages Act no mention is made of a uniform matrimonial property system to be applied to marriages entered into after the new statute. Even in regard to existing marriages it is not entirely clear what is being suggested with respect to the matrimonial property systems to govern these marriages. The Paper proposes that parties who choose to register existing Islamic marriages must reach agreement as to the appropriate matrimonial property system and then draws an analogy with the Matrimonial Property Act 88 of 1984 "which dealt with the establishment of the accrual system and its impact upon existing marriage in community of property." (see page 17 of the Paper) Firstly the Matrimonial Property Act introduced the accrual system for marriages that were out of community of property in terms of an antenuptial contract by which community of property and community for profit and loss are excluded. And secondly it didn't require parties to reach an agreement on whether accrual would apply or not. Unless there was a prior antenuptial contract which excluded it the Matrimonial Property Act stipulates that the accrual system will automatically apply to all marriages out of community of property. It is common cause that in most cases women negotiate from a weaker bargaining position, more so the case where most married Muslim women have not concluded antenuptial contracts.

When referring to existing marriages the Paper briefly proposes that "provisions would have to define, inter alia, which marriages become subject to the accrual system or the system of community of property" (see page 18 of the Paper). The Paper doesn't elaborate on the consistency of these systems with Islamic Law nor on what basis it was decided to propose these particular systems as opposed to others. With respect to future marriages the Paper does not mention how the above two suggested systems would fit in should a system of pro forma contracts be introduced by the statute or if not pro forma contracts, then private contracts entered into between parties to a Muslim marriage. I attempt to flesh out various matrimonial property regimes later in this Paper when discussing the regulation of future marriages.

2.5 Polygamy

As mentioned in the Paper, strict prerequisites are required before a man is allowed to enter into a second marriage and the following Quranic verse is quoted:

Unfortunately the Paper does not elaborate on what these strict prerequisites are nor does it contextualise the institution of polygyny in Islamic Law. It simply continues by citing verbatim the sections dealing with polygamy in the Recognition of Customary Marriages Act 120 of 1998 and then concludes that it is not clear whether polygamy in MPL can be accommodated by means of similar provisions. If the applicability of these provisions are questioned with respect to a MPL statute, then one wonders why have they have been cited to start with and why the Paper does not present alternatives to the Recognition of Customary Marriages Act.

In theory Islamic Law promotes monogamy as the norm while polygamy is only permitted in exceptional circumstances. It was introduced in the Quran not on the consideration of lust, nor any benefit for the marrying male, but on the principle of sacrifice, providing protection and support to orphans and their widow mothers, while undergoing a sever tension of dealing with more than one wife. The situation is conditioned by the test of justice as mentioned in the above Quranic verse and because the condition of absolute justice is an extremely difficult position to fulfil polygyny is highly discouraged though not prohibited. Some of the aspects of justice that should be considered are: Is the second marriage just to the first wife? Was she aware at the time of her marriage that the husband may take a second wife? Is it just to the prospective second wife? Does she know what she is getting into? Is it just to the children of the first wife or if the prospective second wife has children, is it just to them? Is it just to the man? Does he know what he is getting into? Is he able to provide equally for each wife, financially, materially and otherwise? Is the quality of life from the holistic Islamic point of view going to be enhanced because of the prospective marriage?

In Islamic Law it is left to the state or the Muslim community to decide whether any intended marriage or polygynous marriage is based on injustice. If it would be an unjust marriage, then it should be prohibited with the threat of imprisonment or a fine. The fact that the Quranic verse restricting polygyny was revealed in the context of windows with orphaned children underwrites the view that polygyny if regulated by the state should only be allowed under exceptional circumstances that ideally should be stipulated in statute.

Besides containing restrictions in the new statute, all schools of Islamic Law, except the Shiis, have endorsed the doctrine of suspended repudiation according to which a wife may stipulate in the marriage contract that divorce would become effective should the husband do certain unfavourable things to her, like taking a second wife. Needless to say the issue of polygyny will definitely be a contentious issue and the statute should contain very clear guidelines as to how it will be regulated.

3. THE REGULATION OF FUTURE MARRIAGES

Various approaches can be adopted when regulating Muslim marriages in South African Law and I briefly allude to a few.

3.1 Recognition through the Marriage Act 25 of 1961

Many of the negative consequence which flow from these marriages have been a direct result of Muslim marriages not being recognised as valid marriages by South African Law. Parties in these marriages were therefore not afforded the same benefits or legal protection given to those parties in civil marriages. (see examples in the writer's discussion paper on "The Recognition of Muslim Marriages – Gender Consequences" 1999) One simple way to alleviate this particular disadvantage is to ensure that all Imams who perform marriage ceremonies are designated as marriage officers in terms of the Marriage Act . When performing a marriage ceremony they would then be required to comply with the formalities of the Marriage Act, which are in any event not vastly different from the formalities being proposed in the Paper, except for the age limit. The implications of this would be that this Muslim marriage would be no different from any other civil marriage and the consequences that flow from a normal civil marriage. The parties to the marriage would be regarded as spouses for the purpose of any other South African law, The marriage would automatically be in community of property unless excluded by an antenuptial contract. Parties would be governed by the Divorce Act should they wish to dissolve the marriage. Should the man wish to enter into a second marriage legally, he would first have to dissolve the first marriage. Alternatively if he concludes a second marriage while still being married, it would not be recognised as a valid marriage. Furthermore the system of Nafaqah would not be applicable any longer as both parties would have a reciprocal duty of support. The system of talaq would also be abrogated as either spouse could rely on the grounds of irretrievable breakdown to apply for a civil divorce. This is similar to the grounds of divorce being suggested in the SALC's Paper. Guardianship and custody of minor children on divorce will no longer be governed by the Natural Father's of Children Born out of Wedlock Act 1998, but will be similarly determined as any other civil divorce.

The about alternative might not however be accepted precisely because it would override some of the fundamental tenets of a Muslim marriage. Parties would however be free to conclude individual antenuptial contracts , which could be based on Islamic Law principles of marriage. As for existing marriages the Marriage Act could be amended to allow for the more accessible registration of existing monogamous marriages. This option does not of course address the problem of how polygamous marriages will be regulated.

3.2 New Statute Recognising and Regulating Muslim Marriages

A new statute would recognise Muslim Marriages as valid marriages for the purpose of South African Law but would also regulate the formalities and consequences of those marriages on the basis of the various interpretations of Islamic law. Parties who do not wish to have their marriages governed by the civil law would opt for this alternative. At the very least the statute should contain provisions dealing with:

• the formalities which govern a MPL marriage;
• the rights and obligations which flow from the marriage;
• the propriety consequences which flow from the marriage;
• how polygamous marriages will be registered and regulated;
• how divorces will be regulated and formalised;
• how guardianship and custody of minor children will be determined on divorce.

Two of the main issues that will have to be considered is which matrimonial property regime should apply to Muslim marriages entered into after the new Act and how will polygamy be regulated. I will therefore deal with these issues in this section.

The Question of Polygyny

New legislation should stipulate the strict conditions under which polygyny may take place having regard to the issues raised in 2.5 above. The new legislation could also endorse the principle of delegated repudiation in which case the right to divorce is vested in the wife who may exercise it should there arise circumstances disadvantageous to her, e.g. becoming a co-wife.

I'm not sure how realistic it is to expect a man who wishes to enter a second marriage to apply to the court in order to approve a written contract that will regulate the future matrimonial property system of his marriages, as is required by section 7(6) of the Recognition of customary Marriages Act. One way of maybe ensuring that men actually adhere to this provision would be to stipulate that a marriage officer is prohibited from performing/concluding a polygamous marriage unless the man produces proof of his written contract that was approved by the court. There is no reason why the rest of section 7(7)-(9) of the Recognition of Customary Marriages Act could not apply to a polygamous situation under the new MPL legislation.

Alternative Matrimonial Property Regimes

3.2.1 Out of Community of Property

New legislation could provide that all future marriages are automatically out of community of property without accrual. The husband's Islamic Law duty of support towards his wife and children would be entrenched. Hence the wife would have a right to claim arrears maintenance for at least three years should her husband default on her maintenance. Under this option the woman's right to claim a consolatory gift if the divorce is at the unjustified behest of the husband could also be entrenched

Under this system a provision could also be included that gives the court a discretion upon the dissolution of the marriage to vary the proprietal regime or award an equitable share of the estate to the wife, in line with section 7 of the Divorce Act 70 of 1979. The court would exercise a discretionary power to redistribute property between the parties depending on their direct and indirect contributions to the growth of the estates. The legislation should stipulate the kind of factors the courts should take into account when exercising its discretion.

3.2.2 Out of Community of Property with the Accrual System

All marriage entered into after the Act could also be regarded as automatically out of community of property but subject to the accrual system. These provisions would be similar to section 2-10 in the Matrimonial Property Act 88 of 1984. Under this system the husband would still have a duty to support the wife and children but on dissolution of the marriage through death or divorce the accrual system would apply. There wouldn't be a need to entrench the provision dealing with the consolatory gift under this system.

3.2.3 In Community of Property

Alternatively the legislation could simply adopt the approach taken in the Recognition of Customary Marriages Act, whereby all new marriages entered into after the new act are automatically in community of property and profit and loss, unless excluded by an ante-nuptial contract. Under this system however the women would lose her unilateral right to maintenance as is guaranteed in Islamic Law. She would have a reciprocal duty of support towards her husband. She would furthermore have to share in the debts incurred by her husband which she otherwise would not be responsible for in terms of the Islamic Law of marriage. She would however be entitled to half of the joint estate on the dissolution of the marriage even if she has not contributed to the growth of that estate.

3.2.4 Pro Forma Contracts

Another option would be to have the new legislation setting out the formalities that have to be complied with to conclude a valid civil marriage but to leave the conditions that govern the marriage as well as the matrimonial consequences that will govern the marriage to a standard contract. A pro forma marriage contract could be introduced through regulations accompanying the new act. The pro forma contract would make provision for the details of the parties, the dower agreed upon, and other standard provisions which the parties can elect to implement in their marriage contract or can simply delete from their marriage contract. One such clause could give the parties the option of choosing one of two particular matrimonial property regimes to govern their marriage. A standard provision that gives the wife the right to divorce in the event of the husband taking a second wife could also be included as a standard clause, which the parties may agree to delete from the contract. Under this system however it would be very important to have properly qualified marriage officers performing marriage ceremonies. They would have to ensure that parties are given the pro forma contracts a reasonable time before the marriage ceremony and at the actual marriage ceremony they would have to ensure that parties understand the implications of the contract when they sign it before him and two witnesses. Under this option the legislation would still have to regulate how and under what circumstances polygamous marriages may be entered into.

It is submitted that under all the above systems divorces should be brought before the family court or the high court who should hear the matters with the assistance of qualified MPL experts as opposed to any marriage officer/religious minister.

4. CONCLUSION

From the above discussion it becomes clear that many of the issues raised in the South Africa Law Commission's Discussion Paper are actually quite complex and should not be oversimplified. There are many creative and innovative approaches that can be taken to many a thorny issue and the Commission should engage as broad a spectrum of views as possible in order to achieve the most equitable, accessible and acceptable legislation.

The ideas contained in the above paper are the personal views and opinions of the writer and should not be cited or used in any submission without the permission of the writer.

Fatimah Essop

fessop@mweb.co.za