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The South African Law Commission has approved a Discussion Paper containing preliminary recommendations and a proposed draft Bill on the recognition of Islamic marriages at its meeting on 19 November 2001. The Discussion Paper will be distributed both nationally and internationally for purposes of eliciting comment on the Commission's proposals relating to the statutory recognition of such marriages.

Historically, and until the landmark 1999 Supreme Court of Appeal decision in Amod v Multilateral Motor Vehicle Accidents Fund, a marriage contracted according to Islamic law was regarded by South African courts as null and void and as being contrary to public policy, with the result that the marriage and its consequences were not legally recognised in any form. The decision in Amod, however, recognised a monogamous Islamic marriage for the purposes of support only, and did not deal with other crucial issues such as polygamy and the status of respective spouses, maintenance obligations, proprietary consequences of Islamic marriages, termination, etc. The result is that gross inequities and hardships arising from the non-recognition of Islamic marriages still prevail.

The Law Commission published an Issue Paper for public comment in July 2000. The purpose of the Issue Paper was to identify the issues and problem areas, arising out of the investigation, with a view to maximum consultation with all interested parties and bodies, so as to obtain their inputs in arriving at an appropriate solution to the issues and problems identified in that document. The lively interest shown in the Issue Paper was illustrated by the significant number of comments on the proposals in that paper. These comments were duly taken into account by the Commission's project committee during the process of developing a draft Bill.

The proposed draft Bill contained and explained in the Discussion Paper draws a clear distinction between an Islamic marriage and a civil marriage. It is only Islamic marriages that would fall within the ambit of the Bill. Provision is inter alia made for the regulation of proprietary consequences, changes to matrimonial property systems (with due regard to existing and vested rights) and the regulation of polygamous marriages. In terms of the draft Bill all existing Islamic marriages would be recognised as valid marriages, for all purposes, upon commencement of the proposed legislation. This would cover both monogamous and polygamous Islamic marriages which, if applicable, may exist alongside a civil marriage (ie a marriage registered under the Marriage Act).

It is further proposed that, because the judges of secular courts are by and large non-Muslims, a judge be assisted by two assessors who are experts in Islamic law in the adjudication of all disputes relating to Islamic law. The appointment of assessors means that the court presiding over a dispute involving Islamic law would have the necessary expertise to resolve such disputes effectively.

The Commission's proposed draft Bill in addition addresses the registration of Islamic marriages, the dissolution of such marriages through the pronouncement of a Talaq (which, in terms of the proposals, must be confirmed by a court), custody of and access to minor children and maintenance.

The comments of all parties who feel that they have an interest in this topic or may be affected by the type of measures discussed in the Discussion Paper are of vital importance to the Commission. All respondents are invited to indicate their preferences in respect of the proposals made and to indicate whether there are other issues or options that must be explored. All relevant role-players and institutions that are likely to be affected by the proposed measures and any interested member of the public should therefore participate in this debate. The Commission will take all submissions into account before it will prepare a final report to be submitted to the Minister for Justice and Constitutional Development during the course of 2002.

The closing date for comment on the Commission's proposals is 31 January 2002. Interested persons, bodies or institutions who wish to submit comment may obtain a copy of the Discussion Paper from the Commission's offices at the 12th Floor, Sanlam Centre, Corner of Andries and Pretorius Streets, Pretoria. The postal address is Private Bag X668, Pretoria, 0001 and the telephone number is (012) 322-6440. Enquiries should be addressed to Mrs P Kotze. The document is also available on the Internet at the following address: wwwserver.law.wits.ac.za/salc/salc.html

Contact person for enquiries in respect of media statement: Mr H Potgieter (Tel (012) 322-6440)

Issued by The Secretary: South African Law Commission, 6 December 2001