Proposed changes to Matrimonial Property Act face opposition from some members of Muslim community

A South African Law Review Commission discussion paper, which proposes progressive changes to the country’s 40year-old Matrimonial Property Act, has appeared to raise the ire of some members of the Muslim community.

The vehement objectors to the paper say the rights of divorce in a Muslim marriage [Nikah] vest only with the husband and these religious marriage regimes should never be subject to SA law or its courts.

The SALRC discussion paper simply seeks to bring the act in line with the SA constitution, various judgments, and the significant social changes the country has undergone since it was enacted 40 years ago.

The advisory panel which contributed to the paper consists of academics from across the country and follows intensive consultation.

The chair of the advisory committee of the SALRC on this particular discussion paper, Rhodes University law Prof Helen Kruuse, said in an interview the panel and the commission itself were bound by the constitution and the decisions of the courts in drafting the discussion paper.

The paper seeks to amend the act to avoid situations where, in particular, women and their children are left destitute and without any property rights when a marriage or life partnership ends — in existing civil marriages, as well as in customary and religious marriages, and in unmarried intimate relationships.

But it is the seemingly obvious proposals that property distribution — following the dissolution of marriages, including religious marriages — be governed by the amended law and enforced by SA courts that have found vehement opposition from some quarters of the Muslim community.

Spouses in marriages that receive no legal recognition, including those in religious marriages, have had no statutory rights to share in property that has been amassed during their relationships.

One of the proposals in the 262-page discussion paper is that, in religious marriages, the matrimonial property regime should result in the assets of the marriage being split equitably if the marriage dissolves — or split in a way that the court hearing the divorce deems fit and fair.

At least one group of scholars, through website ummati.co.za, have encouraged Muslims to object to the discussion paper by providing a “quick template” and submission format for what it has characterised as “another draconian bill”.

This template sets out that, among other things, the Nikah [Muslim marriage] is governed by Shariah [Islamic] law and can never be subject to the secular law of SA or its courts, that marriage does not create property rights in Islam, and that the Nikah should not be encumbered with secular concepts and Western matrimonial property schemes.

Kruuse said the commission had, to date, received many constructive comments, both agreeing with the suggestions and objecting to them.

However, she suggested that the labelling of the discussion paper as a “draconian bill” was unhelpful in encouraging the public to respond meaningfully to the proposals.

She emphasised that it was still in the form of a discussion paper and, in particular, no bill had been drafted.

“The commission has announced it is extending the deadline for comment on the paper from September 30 to the end of November.

“We welcome and encourage comments on all the proposals in the discussion paper — not just related to religious marriages.

“The commission is serious in its commitment to recommend reform of the law based on people’s lived realities.”