Image: Unsplash
Image: olcay ertem from Pixabay
The current laws governing marriage unions in South Africa will likely have a profound impact on religious practices which govern matrimony.
Prof Christa Rautenbach and Prof Waheeda Amien, both members of the South African Law Reform Commission, recently presented a webinar hosted by UWC’s Law School on the review of matrimonial legislation, specifically the implications for religious laws in South Africa.
Prof Rautenbach from North West University, who is also President of the Commission on Legal Pluralism, has written extensively on customary marriages and said the Law Reform Commission did not seek to dictate customary marriages.
“We are recommending that there be a default regime,” said Prof Rautenbach.
This default regime, she explained, would be that all customary marriages be in community of property without accrual. “Project 144” as it is dubbed was a multi-year process to create a single marriage statute which would create a unified legal framework. She said despite the report from the commission being submitted to Parliament in October 2024, it seems that at the start of 2025, the ministers of Justice and Home Affairs have not yet engaged on the recommendations.
“By June 2025, three years would have passed since the report’s approval and its status remains uncertain. So, stakeholders have begun questioning, and we’ve received emails, (about) whether their contributions and consultations even mattered.
“If a report is completed and never released, what purpose did the consultations even serve?”, was the question many of the participants in the process had posed to the commission, according to Professor Rautenbach.
She said the Marriage Bill which was the product of a parallel process by the Department of Home Affairs, alongside the commission’s “Project 144”, was currently the subject of public hearings. The Marriage Bill will recognise Muslim marriages on condition that they were registered at the Department of Home Affairs.
She explained, in the case of Muslim marriages, there was an opt-out clause when it came to community of property, adding that “we are governed by substantive equality”.
On the question of same-sex marriage in Islam, although not directly related to the topic of the webinar, the speakers agreed that religious officers were not legally compelled to register these marriages.
“Religious officers are allowed to register marriages according to their own conscience,” said Prof Amien, who is an expert in religious pluralism, religious family law and human rights.
The question of same-sex marriage came in the aftermath of the first openly gay imam, Muhsin Hendricks, having been shot and killed while he was in Gqeberha in the Eastern Cape to conduct the traditional marriage ceremony of two lesbians.
Another participant, Fazel Bulbulia, said the Marriage Bill retrospectively recognises all religious marriages.
“If you think for example, from the Customary Marriage Act, if you took the percentage of people, it's a very low percentage who went and registered their existing marriages,” he said.
Bulbulia wanted clarity from the two experts, asking: “Many couples will be married, in terms of nikah, will be married without (prenuptial) contract. Will that be deemed in community of property?”
He said having the Marriage Bill apply retrospectively will lead to more problems.
Another participant, Aslam Mayet, argued that current bills and proposals do not allow “and empower a person to practise his or her faith, requires the nikah marriage to be regulated in accordance with what the State determines their faith to be”.
Mayet further added that this “religious entanglement” by the State may fall foul of the Constitution which protects freedom of religion.
“There should be an opt-out clause, which solves the problem of shoving the State's version of your religion on you,” argued Mayet.
On polygamous marriages in Islam, Mayet said new legislative proposals also had to take into consideration the question of consent from the first wife when her husband sought to enter into polygamous marriage. Some Muslims do not believe that the consent of the prior wives is required to perform a polygamous marriage.
“Vulnerable wives need to be protected! The answer is not straightforward, and the right balance needs to be sought,” said Mayet.
Image: olcay ertem from PixabayProf Christa Rautenbach and Prof Waheeda Amien, both members of the South African Law Reform Commission, recently presented a webinar hosted by UWC’s Law School on the review of matrimonial legislation, specifically the implications for religious laws in South Africa.
Prof Rautenbach from North West University, who is also President of the Commission on Legal Pluralism, has written extensively on customary marriages and said the Law Reform Commission did not seek to dictate customary marriages.
“We are recommending that there be a default regime,” said Prof Rautenbach.
This default regime, she explained, would be that all customary marriages be in community of property without accrual. “Project 144” as it is dubbed was a multi-year process to create a single marriage statute which would create a unified legal framework. She said despite the report from the commission being submitted to Parliament in October 2024, it seems that at the start of 2025, the ministers of Justice and Home Affairs have not yet engaged on the recommendations.
“By June 2025, three years would have passed since the report’s approval and its status remains uncertain. So, stakeholders have begun questioning, and we’ve received emails, (about) whether their contributions and consultations even mattered.
“If a report is completed and never released, what purpose did the consultations even serve?”, was the question many of the participants in the process had posed to the commission, according to Professor Rautenbach.
She said the Marriage Bill which was the product of a parallel process by the Department of Home Affairs, alongside the commission’s “Project 144”, was currently the subject of public hearings. The Marriage Bill will recognise Muslim marriages on condition that they were registered at the Department of Home Affairs.
She explained, in the case of Muslim marriages, there was an opt-out clause when it came to community of property, adding that “we are governed by substantive equality”.
On the question of same-sex marriage in Islam, although not directly related to the topic of the webinar, the speakers agreed that religious officers were not legally compelled to register these marriages.
“Religious officers are allowed to register marriages according to their own conscience,” said Prof Amien, who is an expert in religious pluralism, religious family law and human rights.
The question of same-sex marriage came in the aftermath of the first openly gay imam, Muhsin Hendricks, having been shot and killed while he was in Gqeberha in the Eastern Cape to conduct the traditional marriage ceremony of two lesbians.
Another participant, Fazel Bulbulia, said the Marriage Bill retrospectively recognises all religious marriages.
“If you think for example, from the Customary Marriage Act, if you took the percentage of people, it's a very low percentage who went and registered their existing marriages,” he said.
Bulbulia wanted clarity from the two experts, asking: “Many couples will be married, in terms of nikah, will be married without (prenuptial) contract. Will that be deemed in community of property?”
He said having the Marriage Bill apply retrospectively will lead to more problems.
Another participant, Aslam Mayet, argued that current bills and proposals do not allow “and empower a person to practise his or her faith, requires the nikah marriage to be regulated in accordance with what the State determines their faith to be”.
Mayet further added that this “religious entanglement” by the State may fall foul of the Constitution which protects freedom of religion.
“There should be an opt-out clause, which solves the problem of shoving the State's version of your religion on you,” argued Mayet.
On polygamous marriages in Islam, Mayet said new legislative proposals also had to take into consideration the question of consent from the first wife when her husband sought to enter into polygamous marriage. Some Muslims do not believe that the consent of the prior wives is required to perform a polygamous marriage.
“Vulnerable wives need to be protected! The answer is not straightforward, and the right balance needs to be sought,” said Mayet.
