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Comment & analysis
South Africa’s courts and Muslim marriages
Waheeda Amien
2010-01-14, Issue 465
http://pambazuka.org/en/category/comment/61421
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In South Africa, Muslim marriages are not legally recognised. While there are movements afoot to afford them recognition, we do not know when it will happen. In the meantime, it is necessary to consider ways in which Muslim parties can protect themselves until that happens.
Shari’a, in fact, provides a remedy for protection within the marriage, namely the conclusion of a written marriage contract. Shari’a recognises a Muslim marriage as a contract, which means that parties can include agreed upon terms in the marriage contract. Therefore, it is up to parties to be proactive and to ensure that they conclude a contract when entering marriage.
REASONS TO CONCLUDE A MARRIAGE CONTRACT
Most people who enter marriage do not want to contemplate the possibility that the relationship may end in divorce or that the relationship may not meet their expectations. In fact, it is hoped that every marriage will be successful. Unfortunately, divorce is a real possibility so it would be unwise for those entering marriage not to make provision for the possibility that it may happen.
A marriage contract is additionally important if either party wants to legally enforce a term of the contract that the other party is failing to uphold. South African secular courts have indicated that terms of a Muslim marriage contract are enforceable in court. If parties have rights accruing to them from the marriage or divorce and those rights have been recorded in a marriage contract, they will be able to enforce them in a South African court. It is preferable for the contract to be in writing because that constitutes proof of the agreement. It is more difficult to prove that you have entered into an oral contract because you have to rely on the testimony of witnesses, which is not always possible, for example, if the witnesses are not available.
Some women may also not consider a marriage contract because they fear that their fiancés would refuse to marry them if they insisted on having one. Yet, if a man is not willing to guarantee his future wife’s protection in writing before he marries her, what guarantee does she have that he will protect her after they are married? And if he is not willing to recognise the rights that Shari’a affords her, then he is not worth marrying in the first place. A person would only fear entering a written contract if she or he does not intend or does not think she or he will be able to uphold the terms of that contract. In fact, parties should recognise that a marriage contract could benefit them both because they could each hold the other accountable to the terms of their marriage contract.
POTENTIAL TERMS FOR A MARRIAGE CONTRACT
Which rights could one include as terms in a marriage contract to ensure sufficient protection? The list could be endless. But here are some that immediately come to mind:
Parties could agree on the type of matrimonial system that should apply to their marriage. For example, they could decide that they wish to have a combined estate so that if the marriage ends, there would be a 50/50 split of the assets accrued during the marriage. Or they could decide to keep their estates separate throughout the marriage but agree that if one contributed to the maintenance or increase of the other’s estate, then that contribution should be compensated by the other party. In the latter instance, it would be advisable for parties to keep a record of purchases made during the marriage so that each has proof of whatever contributions she or he made. This becomes important when there is a legal dispute because the judge will only be able to make an award for contributions if, firstly, there is proof of payment and, secondly, there was an agreement that the contributions should be compensated.
The parties could record the ‘mahr’ that has been agreed upon and stipulate precisely when payment will be made.
The parties could agree that the wife will be entitled to ‘tafwid-ul-talaq’ i.e. that the husband delegates his right of ‘talaq’ to his wife. She would then be in a position to release herself from the marriage without having to apply for faskh or wait for her husband to issue ‘talaq’ against her.
The contract could also record the wife’s right to obtain ‘khul’a’ without requiring her husband’s consent in exchange for the return of her ‘mahr’. Although some members of the South African ‘ulama’ think that ‘khul’a’ can only be granted with the husband’s consent, there are many ‘fuqaha’ in Muslim countries that believe otherwise. For example, Egypt, Nigeria, Bangladesh, Pakistan and the Philippines have codified ‘khul’a’ into their family laws as a form of divorce available to the wife that does not require her husband’s consent. In fact, the khul’a codification in Egypt emanated from a fatwa of Al-Azhar University, which is globally accepted as the ‘seat of Islamic scholarship’. So it would be quite feasible for a contract to include ‘khul’a’ as not requiring the husband’s consent.
The parties could further agree that should the husband take a subsequent wife, the consent of the first wife should first be obtained, failing which she will have the right to exit the marriage without requiring ‘talaq’ from her husband.
In the event that the husband takes a subsequent wife, the parties could moreover agree that the husband and all existing wives should go for HIV testing on a regular basis and that for example, failure by the husband to do so will entitle the wife to be released from the marriage without his permission. In fact, this is a condition that could also be included if the parties were to remain monogamous. This is an important issue to consider given the high prevalence of HIV/AIDS in South Africa and the fact that among others, it is directly linked to circumstances involving multiple sexual partners.
The parties could also agree on guardianship and custody arrangements relating to children born of the marriage in the event that the marriage dissolves. However, any dispute relating to minor children will ultimately be decided by a South African secular court, which will consider the best interests of the child as the primary criterion for its decision.
As part of the husband’s maintenance obligation, the parties could agree that the wife will be remunerated for: Periods of breastfeeding; childrearing; and all household work that she performs (unless the husband undertakes to hire a domestic assistant). The agreement could stipulate that failure by the husband to adhere to these terms of the contract would afford the wife sufficient grounds to obtain divorce.
The parties could undertake to treat each other with respect, kindness and compassion. Furthermore, if the parties agree, the contract could record that their relationship will be based on equality and not the subservience of one party to another. The contract could also note that any form of domestic violence would enable the victim to exit the marriage without requiring the consent of the perpetrator.
The above points are some of the generic terms that could be included in a marriage contract. There may be issues that parties would want to make provision for that would apply specifically to their individual circumstances. Since the list is not exhaustive, there is no reason why terms other than those listed above cannot be included in a marriage contract, provided they are reasonable.
CONCLUSION
While a marriage contract would enable parties to assert their rights in the event that a marriage terminates in divorce, it can also serve to hold parties accountable for their rights and obligations within marriage. A contract can therefore be seen as an enabling mechanism to prevent abuse within marriage. It also affords the parties an opportunity to consider what marriage entails so that parties do not enter the bonds of matrimony lightly. It gives them a chance to think about what type of relationship they would want to have with their life partner and to set the terms to facilitate engendering that relationship. It is no secret that the lifelong commitment encompassed by marriage is one of the most important decisions that any person can make in her or his lifetime. Therefore, we should encourage those contemplating marriage to seriously consider having a marriage contract. And for those who are already married but do not have a marriage contract; all is not lost. A marriage contract can be entered into at any time; before or after the conclusion of the ‘nikah’.
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* Waheeda Amien is a Law lecturer at the University of Cape Town. This article is written in her personal capacity.
* Please send comments to editor@pambazuka.org or comment online at Pambazuka News.
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