• Download the South Africa section of Home Truths: A Global Report on Equality in the Muslim Family in English or Arabic. 

• View the report submitted to Musawah by South African women's rights activists.

• View the article 'Overcoming the conflict between the right to religious freedom and women's rights to equality - a South African case study of Muslim marriages', Waheeda Amien, Human Rights Quarterly 28 (2006) 3, 729-754.

South Africa is a secular society governed by a Constitution with a strong Bill of Rights that entrenches both gender equality and freedom of religion. While freedom of religion is broadly accommodated within the South African legal context, there is strong evidence to suggest that it could be subordinate to women’s right to equality. Muslims constitute the largest religious minority within South Africa’s multicultural society. Muslim family law is not legally recognised and/or legally enforceable. Marriages entered into by Muslim rites only are treated as illegal and invalid, which has negative consequences for all parties involved, particularly women. Many Muslims from all sectors of society have been struggling to change this. In June 2008, the Recognition of Muslim Marriages Forum was established to campaign for the recognition of Muslim marriages. The Forum consists of progressive Muslim and secular organisations, community activists, human rights activists, academics, social workers and attorneys, among others.

• Because Muslim marriages are not recognised, Muslim women are unable to enforce their Shari‘ah rights such as mahr and spousal maintenance. Judicial outcomes in successful cases do not apply to everyone. Each time a woman wishes to enforce a Shari‘ah right, she must seek recourse in the courts. This is expensive, time-consuming, and there is no guarantee of success, so it is not an option for many women.
   
• Muslim family law is interpreted and applied by ulama, many of whom are conservative, believing that the Qu’ran simply requires equity (and not equality) between men and women. Discriminatory rules and practices include:
  • Marriage by proxy for women (in the Shafi‘i and Hanafi communities).
  • Payment of mahr carries an expectation that the wife be sexually available to her husband. Payment is often deferred, then men refuse to pay when the marriage has been terminated.
  • The husband is expected to maintain his family; the wife must be obedient in return, even when she contributes monetarily to the household.
  • Polygyny is practised; the consent of the first wife is not required.
  • Matrimonial assets are kept separate. Intangible contributions by wives are not recognised by the ulama or secular courts.
  • Triple talaq is common. Women are often simply informed that their husbands issued talaq against them; the ulama tend to confirm the talaqs without consulting the wives. While fasakh is theoretically available to women, few apply because the process can be ‘difficult’, ‘expensive’, and sometimes ‘humiliating’. Thus, Muslim women may not be able to obtain divorces.
  • Women are expected to observe the iddah; maintenance is not paid beyond the iddah.
  • Women are expected to observe hilala.
     
• Muslim women who marry only under Muslim rites cannot access civil law benefits. Neither option that would allow the marriages to be legal is utilised by Muslim communities due to historical, political, and religious reasons:
  • A nikah could be considered a civil marriage if the Imam applied for designation as a marriage officer under the Marriage Act 1961. However, imams do not know this or choose not to do this because it will prevent them from officiating polygynous marriages, which are only allowed for African customary marriages.
  • Muslims could contract a civil marriage either before or after the nikah. But this is not part of the culture; being married ‘in court’ carried a stigma; and many men do not want to marry civilly because it will strengthen their wives’ position in the marriage.

• Civil law provides for formal equality between spouses in marriage; divorce; spousal and child maintenance; and custody, access and guardianship of minor children. It has abolished the marital rape exemption; provides protection against domestic violence; and offers a wide range of constitutional rights. There are still some areas of discrimination, e.g. the law does not recognise the unpaid labour of women in the home.
   
• The Constitution allows for the recognition of religious personal laws if the legislation is consistent with other constitutional provisions, including gender equality.
   
• A process has been undertaken to draft legislation for the recognition of Muslim marriages.
   
• Accommodation of cultural diversity has given rise to the legal recognition of polygyny in African customary marriages, creating an expectation that polygyny could also be recognised within Muslim marriages. However, husbands in customary marriages must obtain court approval and prove ability to support all of the wives, which could be precedent for the Muslim context if polygyny is allowed.

In 1999, the South African Law Reform Commission established a Project Committee (PC) comprising mostly male progressive and conservative Muslims to draft legislation for the recognition of Muslim marriages. Following a three year extensive consultative process, the PC drafted legislation entitled the Muslim Marriages Bill (MMB), which is considered to be a compromise between progressive and conservative expectations. The MMB is drafted within a Shari‘ah framework and proposes to recognise and regulate Muslim marriages. It recommends that mostly Muslim judges from within the secular judiciary undertake the interpretation of Shari‘ah and preside over divorce cases with Shari‘ah experts as assessors. The PC submitted the MMB to the Minister of Justice and Constitutional Development in 2003.

In 2005, the Commission for Gender Equality drafted the Recognition of Religious Marriages Bill and submitted it to the Minister of Home Affairs. This bill purports to recognise all religious marriages, including Muslim marriages, but leaves regulation of these marriages in the hands of the respective religious communities. In this bill, divorce follows civil consequences and polygyny is recognised in an unregulated form.

To date, neither Minister has submitted the draft legislation to Parliament. While both bills would alleviate the problem of recognition of Muslim marriages, each presents gender equality challenges. Both are contested by ultra conservative members of the ulama who say that State recognition of marriages will not be effective for Muslims because it will not result in a ‘purely’ Islamic system.