Recognizing Muslim Marriages

Case: Muslim Marriages Bill, South Africa, 2010

Case Synopsis: Nearly 1.5 million of South Africa’s 60 million citizens are Muslims, yet their marriages do not enjoy legal status. Since the 1990s, the South African Law Reform Commission (SALRC) has initiated various projects aimed to redress past discrimination against different religious communities. Despite the introduction of the “Muslim Marriage Bill” by the Republic of South Africa’s Department of Justice and Constitutional Development in 2010, the bill has still not passed and Muslim marriages are still unrecognized and potentially illegal. Considered as distinct from civil marriages, in South Africa Muslim marriages are not recognized by the state. Unable to attain legal recognition, Muslims do not have state recourse to file for divorce, claim inheritance, assert asset and property rights following death or the dissolution of marriage. This persistence of the systemic legal illegibiltiy of Muslim marriages has had created far-reaching consequences for Muslim communities, and particularly for Muslim women. This module explores the how the history and discourse of religious establishment, state recognition, women’s rights, and religious freedom have played out in the (non-)recognition of Muslim marriages.

This case originates in the work of Peter Danchin.

Sources
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Muslim Marriages Bill

Republic of South Africa: Muslim Marriages Bill, 2010
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Report on Muslims Marriages

South African Law Reform Commission, Project 59: Islamic Marriages and Related Matters Report, July 2003
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Commission Bill on Religious Marriages

Commission on Gender Equality Bill on “Recognition of Religious Marriages,” 2005
Analyses
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Legislating Religious Freedom

Amien, Waheeda, and Dhammameghā Leatt. 2014. ‘Legislating Religious Freedom: An Example of Muslim Marriages in South Africa’. Maryland Journal of International Law 29 (1): 505–47.
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Religious Establishment & Muslim Marriage

Danchin, Peter. 2016. ‘The Politics of Religious Establishment: Recognition of Muslim Marriages in South Africa’. In Varieties of Religious Establishment, edited by Winnifred Fallers Sullivan and Lori G Beaman, 165–86. New York: Ashgate.
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Religious Freedom & Women's Rights

Amien, Waheeda. 2006. ‘Overcoming the Conflict between the Right to Freedom of Religion and Women’s Rights to Equality: A South African Case Study of Muslim Marriages’. Human Rights Quarterly 28: 729–54.
Context
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Recognition of Muslim Personal Laws

Manjoo, Rashida. 2007. ‘The Recognition of Muslim Personal Laws in South Africa: Implications for Women’s Human Rights’. Human Rights Program at Harvard Law School Working Paper.

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Muslim Law in South Africa

Moosa, Ebrahim. 1996. ‘Prospects for Muslim Law in South Africa: A History and Recent Developments’. Yearbook of Islamic and Middle Eastern Law Online 3 (1): 130–55. 
A project of Politics of Religion at Home and Abroad, funded by the Henry Luce Foundation