Muslim women ‘unprotected’ in marriages

Muslim women in South Africa experience compound forms of discrimination materially different to their counterparts married under civil marriages, the select committee on security and justice heard yesterday during the briefing on the public submissions received for Divorce Amendment Bill.

Muslim women vulnerable upon dissolution of a Muslim marriage by Talag

Speaking on the importance of the legislative amendment, the Women’s League Centre (WLC) said the present vulnerable position of Muslim women upon dissolution of a Muslim marriage by Talag, is self-evident.

“Women are often left with a virtually nonexistent proprietary estate and sometimes completely destitute upon a Talag being issued.

This, coupled with the responsibility of childcare and none of the statutory safeguards afforded other similarly placed women,” the WLC said.

“Jointly accumulated assets in Muslim marriages are often registered in the husband’s name.”

The centre was responding to clause 4 Section 7 of the principal Act which stated: (a) by the insertion after subsection (3) of the following subsection: “(3A) A court granting a decree of divorce in respect of a Muslim marriage, may, subject to the provisions of subsections (4),(5) and (6), on application by one of the parties to that marriage.

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“In the absence of any agreement between them regarding the division of assets, order that such assets, or such part of the assets, of the other party as the court may deem just, be transferred to the first-mentioned party,” said the clause.

The WLC added for many Muslim spouses “no formal written contracts are entered into at the solemnisation of marriage”.

Property and assets are in the name of the husband

Most often, therefore, in practice, they will find that couples have not concluded any agreements and because of nonrecognition and patriarchal influence in marriage, property and assets are in the name of the husband.

According to clause 1 Section 1 of the Divorce Act, 1979 Muslim marriage means marriage entered into concluded in accordance with the tenets of Islam.

National, Education, Health and Allied Workers Union accepted the insertion of Muslim marriage, but argued “tenets of Islam” was vague.

The department of justice and constitutional development responded it opted for the phrase “tenets of Islam” as it was broad and covered a multiplicity of meanings.

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“The dictionary meaning of tenet is a principle or belief, especially one of the main principles of a religion or philosophy. This word captures any and all sects or denominations in Islam and any person who practices Islam,” said the department.

Bill should also revisit Recognition of Customary Marriages: Act, 1998

Senzokuhle Advice Centre said the Bill was largely progressive in protecting the interests of minors, as well as women within the Muslim community, but the Bill should also revisit the Recognition of Customary Marriages: Act, 1998, particularly Sections 7 and 8 as it is not included in the current Divorce Act.

The department was of the view that inclusion of Section 7 and 8 was unnecessary.

Senzokuhle noted that the dissolution of customary marriages is addressed in that Act and contended that there is a need for it to be included in the Divorce Amendment Act that they envision.

Trade union federation Cosatu supported the Bill because it was constitutionally necessary and it protected the rights of women during divorce proceedings.

Cosatu urged parliament to ensure the speedy passage of this progressive Bill.

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