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Our South African Family Law draws a distinction between civil marriages and religious marriages. When married in terms of a religious marriage, without solemnisation before a marriage officer, similar rights to those that flow from civil marriages are not conferred on the Spouses to such religious marriage. This, many feel, has harsh implications for female Spouses. The laws governing religious marriages often do not provide the same level of assistance to Spouses as civil marriages.
In terms of Islamic Law, the matrimonial property system is deemed to be one that is ‘out of community of property’. Essentially, this means that upon Divorce, i.e. dissolution of the marriage, each Spouse would retain all assets and liabilities that accrued in his or her separate estate.
In Khan v Khan, the Court considered whether a legal duty existed, in terms of the Maintenance Act, for the husband to maintain his Spouse to whom he was married in terms of a Muslim marriage. The Court held that partners to Muslim marriages owe a duty of support to each other and therefore are entitled to claim maintenance from each other as provided for in the Maintenance Act.
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In the matter of Daniels v Campbell, the Constitutional Court held that a Spouse in a monogamous Muslim marriage should be included in the definition of the word ‘Spouse’ as referred to in the Intestate Succession Act and should be included in the definition of a ‘survivor’ in terms of the Maintenance of Surviving Spouses Act.
Before the judgment, these Acts only granted rights to Spouses in civil marriages. The judgment extended the right to Spouses in Muslim religious marriages, thereby, allowing a Spouse in a Muslim religious marriage to inherit from the intestate estate of a deceased Spouse and to claim maintenance from the estate of the deceased Spouse.
In Hassam v Jacobs NO, the Court went further and allowed both wives in a polygamous Muslim marriage to inherit from their Spouse’s intestate estate. It held that the term ‘survivor’ as used in the Maintenance of Surviving Spouses Act should be read to include ‘surviving partners to a polygamous Muslim marriage’.
The above examples show that currently surviving Spouses in Muslim marriages, whether monogamous or polygamous, are entitled to inherit from the intestate estate of the deceased Spouse, and to lodge a claim for Maintenance in terms of the Maintenance of Surviving Spouses Act.
In respect of immovable property, it is important to establish how the property was registered. If for instance, the property is registered in the name of the husband, the wife would not have an automatic claim to a share in the property upon dissolution of the marriage.
It is therefore advisable to register the property in the names of both Spouses, reflecting an equal share in the property, if this is the share distribution envisaged by the parties. It could otherwise work harshly on a female Spouse who was a housewife and who never had the opportunity to increase her estate by gaining employment.
The Children's Act specifically includes religious marriages in the definition of the word ‘marriage’. The biological father of a child born of a Muslim marriage would have to either be currently married to the child's mother; or have been married to the child’s mother at the time of conception of birth; orhave been married to the child’s mother anytime between conception and birth; in order to automatically acquire full parental rights and responsibilities in respect of that child.