This article first appeared in the 30 June 2022 edition of the Cape Argus newspaper.
Cape Town - Much more work is needed following a watershed Constitutional Court judgment which has compelled the president and the Cabinet to amend legislation or pass new legislation that would effectively recognise and regulate Muslim marriages.
This was the view expressed by the Women’s Legal Centre (WLC).
The WLC had approached the Constitutional Court seeking relief in order to empower Muslim women after they go through an Islamic divorce known as “talaq”.
WLC director Seehaam Samaai said they brought the case in the public interest, noting that there was a failure by the state.
“We said there was an obligation on the state to enact legislation or to amend existing legislation to be able to protect the rights of Muslim spouses, but in particular Muslim women because we know that it’s Muslim women who are disproportionately impacted by this lack of regulation,” Samaai said.
She said that while they welcomed the judgment, it was a bittersweet moment considering the length and breadth of what they had gone through since 2014 when they first approached the Western Cape High Court.
“I’m ecstatic and sad because there were many women that we couldn’t directly assist because of this non-recognition, but it’s off the backs of these women that we are carrying this particular case. It’s a bitter pill to swallow that the state allowed us to go 14 years whereas with the Constitutional Court they conceded. There was discrimination – from the high court up until the Constitutional Court when this concession was made,” Samaai said.
Ayesha Royker, 47, is a mother of three who was inspired by her own experience to educate Muslim women on their rights after she was almost left destitute when her 19-year marriage ended. She said if the provision already existed, her situation would have been different.
“Since there was no legislation governing Muslim marriages, I was at the mercy of my ex-husband and the legal process which took almost six years before we finally reached a settlement agreement.
“Had there been adequate protection for women while I was married, or even at the time of my divorce, then I would have been entitled to claim a share of the assets we accumulated together over the duration of our marriage,” Royker said.
Imrah Mallick, 28, an attorney who has also been through an Islamic divorce said: “I think previously Muslim men took advantage of the fact that they knew Muslim women had no remedy to approach courts in order to challenge any decision but these women now have the power to make the decision for themselves if they choose to approach court in order to safeguard their financial stability as well as the stability for their minor children.”
Igshaan Higgins is a city attorney who has years of experience dealing with this type of issue.
“I was extremely sceptical that the judiciary can actually compel the legislature to pass legislation so it came as a very pleasant surprise that the court has put the legislature to terms, so they have 24 months for them to get their act together and that bodes very well for not only Muslim women but for Muslims generally.
“It’s an extreme situation that 350 years later, Muslim marriages are not recognised in this country.
“It’s an embarrassment and it’s even worse when your child is regarded as extramarital and it’s terrible when you die and you’ve been married for however long and your death certificate says that you are not married, so hopefully this will change the situation,” he said.
rafieka.williams@inl.co.za