What rights do I have as a spouse in a Muslim marriage?

If you are in a Muslim marriage or are planning to get married in a traditional Muslim ceremony (Nikah), you need to know your rights under South African law, which has recently changed to afford protections to Muslim couples in divorce cases.

Historically, marriages performed under traditional Muslim law (Sharia) have not been recognised by the state. This caused problems for families in the event of death or divorce. To enjoy the protection of the law, the couple would, in addition to their religious ceremony, need to enter into a civil marriage in accordance with the Marriage Act and the marriage would then need to be registered with the Department of Home Affairs to be legally recognised.

A Constitutional Court decision in 2022 and subsequent amendments to the Divorce Act in 2024 are the first steps to bringing Muslim marriages in line with the Constitution, which guarantees rights to equality and religious freedom. Under a new administrative arrangement, couples married under Muslim law can, on presentation of their Nikah certificate, have their marriages registered with the Department of Home Affairs.

Amendments to the Divorce Act mean divorcing Muslim couples now have access to the courts to ensure the fair distribution of assets and the protection of children.

The Constitutional Court ruled that all applicable laws be changed to include Muslim marriages, but only the Divorce Act has been amended thus far; the Marriage Act and Matrimonial Property Act have not. The Marriage Bill of 2023, which aims to consolidate civil, customary, and same-sex marriages under a single law, has yet to go through parliament, and is expected to be ratified only in mid-2026.

What are the Divorce Act amendments?

The Divorce Amendment Act of 2024 applies to all existing Muslim marriages, as well as those that were terminated or dissolved according to Islamic tenets and where legal proceedings have been instituted but not yet finalised.

The Act has changed the law as follows:

• A fundamental change is the introduction of a legal definition for Muslim marriage. It is defined as “a marriage entered into or concluded in accordance with the tenets of Islam”.
  
  
• A Muslim marriage, like any civil marriage, can now be dissolved by a decree of divorce issued by a court. This ensures that Muslim couples have access to the same legal procedures and protections as other couples.
  
  
• The provisions in our law for minor or dependent children in the event of divorce now apply to children in Muslim marriages, ensuring that their best interests are considered by the court. The court can issue orders regarding their contact with parents, maintenance, care, and guardianship, and gives Muslim parents legal recourse in disputes over custody.
  
  
• The amendments provide for the redistribution of assets on the dissolution of a Muslim marriage. They allow the court, in the absence of an agreement, to order the transfer of assets between the parties, ensuring each party receives a fair share of the assets, taking into account their contributions during the marriage.
  
  
• Where a man is married through Muslim rites to more than one wife, the court will consider all relevant factors in reaching an equitable decision.

What are the key requirements for a legal Muslim marriage?

Both parties need to provide their consent.

The Nikah ceremony must comply with the requirements of Islamic law.

Both parties must be of sound mind and understand the implications of the marriage.

The parties must be 18 years or older (with specific considerations for minors in accordance with Islamic law and the Marriage Act).

They must not be aware of any lawful impediments to the marriage.

What is my marital property regime?

Unlike civil marriages, where the default position in the absence of an antenuptial contract is that the couple is married in community of property, spouses in a Muslim marriage are treated as being married out of community of property without accrual, meaning that each spouse retains his or her separate estate and nothing accrues to them jointly during the marriage. This is in accordance with Muslim law, which upholds the principle “what is yours is yours and what is mine is mine”. However, this does not preclude the court from ordering a redistribution of assets in a divorce, where applicable, as mentioned above.

As with other couples entering marriage, you can choose to draw up an antenuptial contract specifying your marital property regime. For example, you may agree to be married out of community of property but to include accrual. (See “Under what property regime am I married?”)

If you choose to consolidate your Muslim marriage with a civil marriage, it is advisable to draw up an antenuptial contract to avoid any future confusion regarding your property regime.

What happens on the death of my spouse?

This depends on your marital property regime. For marriages in community of property, see “What do I need to know about being married in community of property?”. For marriages out of community of property, with and without accrual, see “Why is marriage with the accrual system a popular choice?” and “What does it mean to be married out of community of property without accrual?”

This article was written by Martin Hesse, a freelancer personal finance writer and former editor of Independent Newspaper’s Personal Finance. It was reviewed by Wessel Oosthuizen, head of financial planning at Fiscal Private Client Services and the former director of the Centre for Financial Planning Law at the University of the Free State.