Muslim Marriage

“The new constitutional order is based on the recognition of our diversity and tolerance for other religious faiths.” - Daniels v Campbell and Others 2004 (5) SA 331 (CC) para 54.

Prior to our progressive and tolerant constitution, marriage was an option available only between a man and a woman in terms of the Marriage Act of 1961. Today same-sex couples may marry in terms of the Civil Union Act of 2006 and the Recognition of Customary Marriages Act of 1998 allows for African customary marriages.

South Africa has yet to enact legislation (law) that specifically caters for Muslim marriage.

Luckily there have been a few positive strides: 

• There are instances where our law does in fact recognize a Muslim marriage to a certain degree in order to offer protection. For example, only a ‘spouse’ can apply for maintenance from the deceased estate of their loved one after his/ her passing. To be considered a surviving ‘spouse’ in terms the Maintenance of Surviving Spouses Act, your marriage must, however, be legally recognized and therefore valid in South Africa. In the Constitutional Court case quoted above, the surviving wife (married in terms of Muslim law) was acknowledged as a ‘spouse' and in the court case of Hassan v Jacobs the surviving spouse of a polygamous Muslim marriage was also accepted as a surviving ‘spouse.' 

• The Muslim Marriages Bill is a draft law that was compiled back in 2003. This Bill has, however, been subject to much criticism. For example, it states that Muslim Marriages will automatically be OUT of community of property unless parties enter into an ante-nuptial agreement stating otherwise. In terms of South Africa’s other marriage laws mentioned above, a marriage will automatically be IN community of property. Being married IN community of property often offers protection to a spouse who gives up his/ her career and opportunities to stay at home and take care of the children. Should the couple divorce, parties married IN community of property will split everything fifty-fifty. 

• A few years ago Imams (Muslim clerics) were trained and appointed as authorized marriage officers, enabling a Muslim marriage to be solemnized by a registered Imam marriage officer in terms of the Marriage Act. Whilst the aforementioned is great news, many questions still remain unanswered pending the enactment of the Muslim Marriage Bill to deal specifically with many rights, responsibilities and consequences of a Muslim marriage. 

The point of having a specific act (law) such as the Marriage Act, Civil Union Act and the Recognition of Customary Marriages Act, is to offer case sensitive regulation and protection. 

Without a specific act, many questions that arise include the logistics and rights when it comes to the resolution of the marriage, for example. There are also a few other concerns regarding Islam law which have been cited as reasons why the enactment of the Bill is dragging its feet, including the man’s exclusive right to end the marriage unilaterally (talaq) and the custom that a woman may be wed by proxy.

“Everyone has the right to freedom of conscience, religion, thought, belief and opinion… This section does not prevent legislation recognizing… marriages concluded under any tradition, or a system of religious, personal or family law… Recognition… must be consistent with this section and the other provisions of the Constitution.” – Section 15(1), 15(a)(i) and 15(3)(b) of the Constitution of the Republic of South Africa, 1996

We wish you a wonderful and thought-provoking Heritage Month. South Africa's rich diversity of religious communities, cultures, languages and customs have a great deal to offer. As the preamble to our Constitution asks, may we all live ‘united in our diversity.’

www.legalhero.co.za

Not married but together for 30 years. What are my rights?

Good morning 

I really need your advice. I have been living with a man for 30 years. We are not married but I found out that he has been having an affair for 3 years. I am going to leave him but please will you tell me what my rights are. 

When we met in I had a house and a car. I did not use my Volkswagen so he used it. He used my car and a year later we sold it and bought him a new car. We also sold my house a few years later and used that to buy a bigger house. This was about twenty years ago. The new house and cars that followed after that are all in his name. I left my job many years ago to take care of my children and he supported us. My two daughters are not his. 

I do all the homework myself, cooking, cleaning, also do the garden, massage his shoulders every night, wash cars, varnishing of the house. My children have left the house but I don’t know what my next step should be. This is not easy. 

Dear Women’s Month Reader 

We are terribly sorry to learn of your predicament. This is a very tricky situation seeing that there is a big gap in South African law when it comes to long term relationships – where both parties contributed to the common household, but on paper only one party holds all the funds. 

Without a valid Marriage, Civil Union (similar to a Marriage) or Universal Agreement, your cohabitation with this man is not expressly recognised in law/ legislation. 

Your options here include: 

a) Prove an implied Universal/ Partnership Agreement in Court: 

- There is a Domestic Partnership Bill (this law has not been enacted/ become operational as yet) which may offer future protection to persons in a similar situation. So, the good news is that the legislators have realised that there is in fact a big shortcoming regarding long term cohabitants. Unfortunately, this new law is dragging its feet and implementation is unfortunately not around the corner.

- HOWEVER, there has been a handful of court cases where one of the cohabitants were able to prove an implied Universal Partnership. This is extremely difficult to prove, and most unfortunately fail. 

- To prove an implied Partnership Agreement, you need to prove that you both contributed to the household/ domestic partnership enterprise and that both parties aimed to make a profit and enjoy the benefits of a growing domestic partnership enterprise. Your lengthy time together will also play a role. Cooking, cleaning, massaging, etc. also count as household contributions.

- Just to highlight a specific case in terms of which the woman was successful in proving an implied Domestic Partnership (and in her case they were together for ten years less than you and your partner, i.e. 20 years): although both contributed to the same extent, as it was claimed, the woman walked away with only 30% of the partnership enterprise’s value.

- This could be a lengthy and tiresome court experience. We note that you are not a Legal Hero policyholder, but we might be able to recommend an excellent attorney in your area. 

b) Better yet, try to mediate the matter: 

- It could be that your partner is willing to settle out of court and award you a fair percentage of the common household considering all your contributions. This would spare you the expense of going to court and one could split the household depending on what is fair to both parties. An agreement could be drawn up for both of you to sign and abide by.

c) Claim monies of the past three years: 

- A Civil claim (your partner owing you money) prescribes in three years’ time. In other words, if you loaned your partner money/ assets/ etc., he would be able to raise the special defense of prescription in court regarding debts older than three years. At this point in time, you would only be able to claim back from your partner any and all expenses (that you are able to prove in writing) over the past three years.

- An acknowledgment and/ or an agreement to start paying the debts off (even if it’s only a small payment every month) will revive the debt!

- Just bear in mind that he who alleges, bears the burden of proof. You would also for example have to give an explanation as to why everything was registered in his name. 

What is a Domestic Partnership Agreement? It is a contract that sets out the legal implications of a committed and long term heterosexual or same sex couple who decide not to marry but wish to protect themselves against an unfortunate separation. More specifically, it sets out the assets and properties of each of the parties and what were to happen should the relationship turn sour. 

Should you and your partner decide to get back together, or you wish to cohabit with another person, please consider entering into a Domestic Partnership Agreement. It has your best legal interests at heart and can save you from all the admin and legal uncertainties you are currently facing. 

This is a lot to take in. Please consider your options carefully and do not hesitate to ask follow-up questions. 

Kind regards, 

Legal Hero

www.legalhero.co.za 

Five Unexpected Hangouts of the Law at Your Family Home

Remember to set the table for one extra (sometimes uninvited) guest that hangs out at your family home. Yes, it is important to have a basic understanding of the law, as it is with us wherever we go. Let’s have a look at a few Family, Civil, Criminal and Labour Law examples at home to put things into perspective.

1.       The irritating neighbours. Your neighbour has the right to the use and enjoyment of his/ her property. This, however, does not mean he can start a band and cause widespread upset by his 2am practise sessions. Neighbour law is based on reasonableness and tries to find a balance between opposing property rights. Your neighbour may therefore only use and enjoy his property to the extent that it does not infringe YOUR right to use and enjoy YOUR property. Remember that one cannot be oversensitive and all factors are taken into account when you apply for an interdict against your neighbour. An interdict can force someone to do something, prohibit someone from doing something or force someone to continue doing something.

2.       That new faulty washing machine. The Consumer Protection Act awards goods an implied warranty of 6 months. According to section 56 of the Act, a Consumer may ask for a repair/ replacement or refund at no cost to the consumer should a defect occur within the first 6 months. Where to complain: contact your hero or contact complaints@thencc.org.za.

3.       School fees. Previously schools could only sue the custodian parent (parent with whom the child stays) for arrear school fees. Only after the Supreme Court of Appeal ruling in Fish Hoek Primary School v GW 2010, can the other biological parent be held liable for arrear school fees. How to claim an increase in child maintenance: contact your hero or visit the Maintenance Division of the Magistrate’s Court and ask for the relevant forms. 

4.       Aging parents. It is true that an aging parent can claim maintenance from his/ her independent children. The parents would have to prove their expenses, that they are unable to support themselves and that the child is in a position to support his/her parent. How to claim: contact your hero or visit the Maintenance Division of the Magistrate’s Court and ask for the relevant forms.

5.       Domestic workers. A Domestic Worker MUST be provided with an employment contract and a pay slip. The employer must safe keep pay slips for THREE years. Impermissible deductions from your Domestic Worker’s pay include damages caused by ironing, meals provided during working time and crockery/ electrical appliances breakages. Noncompliance: the Department of Labour can send an Investigating Officer to your home and you may receive a fine. The matter could proceed to the Labour Court.

If you have any questions on one of the above, please send an email to freeadvice@legalhero.co.za.

Yours faithfully,

Legal Hero 

www.legalhero.co.za

Section 29(2) of our Marriage Act

Legally speaking, can I get married in a garden or on the beach?  

Unfortunately some uncertainty is caused by our Marriage Act vs a court ruling. The Marriage Act 25 of 1961 lists the requirements for a valid marriage. 

According to section 29(2) of the Marriage Act, a marriage officer should solemnize a marriage IN a

i.                   Church;

ii.                  Building used for religious service;

iii.                 Public office; or

iv.                 Private dwelling house with open doors.

In the case of Ex Parte Dow the couple married in a garden. The husband applied to court for an order to declare the marriage null and void. The court, however, dismissed this application and ordered that section 29(2) was to avoid couples getting married in secret.

Please note that Ex Parte Dow was decided in the Durban and Coastal Division of the High Court. Remember that the High Court in Cape Town is not bound by the ruling of the High Court in Durban or elsewhere. 

Just to be on the safe side:

-          Unless you are getting married in Durban, please also follow up your outdoor ceremony ‘legally’ by signing the relevant documents in one of the buildings mentioned above.The parties to a wedding and two competent witnesses must sign the marriage register.

Legal Hero 

www.legalhero.co.za