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The unheard voice of certain Muslim wives: when we fail to outlaw inequality

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*This article has been updated.

Muslim marriages are not governed entirely by South African law. This means that while not all Muslim marriages are unequal, all Muslim women cannot fully access the rights allotted to spouses by South African law.

That there is no set law ultimately governing Muslim marriage, leaves room for inequality.

Recent news reports have indicated that the Women’s Legal Centre (WLC) are inundated with complaints from Muslim wives who experience unfairness in the event of wanting to end their marriages.

To address this, the WLC will face the Presidency, the departments of Home Affairs, Justice and Correctional Services, and Parliament, in the Western Cape High Court on 1 December 2015.

In April 2015, news reports reflect an affidavit submitted by Attorney Hoodah Abrahams-Fayker, of the WLC trust, which states that “My organisation detailed the difficulties experienced by married and divorced Muslim women and the infringing of their rights in the Constitutional Court in 2009 as well as in the various high courts.” She also stated that “in terms of the law which has been in the statutory books for a long time, the Marriage Act, the Recognition Act (which became law in 1998 and recognises customary marriages as valid) and the Divorce Act are not applicable to Muslim marriages.”

This following the 2009 ruling made by the Constitutional Court, in case CCT 13/09, which called for the enactment of the Muslim Marriages Bill, which parliament has still failed to do.

According to the South African Legal Information Institute, it has taken since 1983 to incrementally increase access to spousal maintenance, following divorce. This, literally, on a case by case basis. The progress is slow but it is quite encouraging.

However, what happens to those women who do not have the resources to challenge, fight and win these landmark cases?

An article published recently on the Rand Daily Mail identified that there are two elements at play here: the religious and the secular. Secularism is not at the expense of religion, it is precisely so that a society leaves room for all to practice their religion, privately. But, there must be a common legislative framework in place and the privacy of practice must remain subject to the unequivocal fair treatment of all those involved.

That said, again, not all marriages are unequal and it is not that there are no Muslim women who have managed to get divorced of their own free will.

But are all women granted divorce at their will? Are sure we’re not muzzling the voices of women who want to get divorced? Are we upholding equal rights for all – the Bill of Rights?

Can we be entirely sure?

This is not a matter upon which to attack anyone. People experience inequality across the board, no matter their culture or religion. Yet, in this case, we have not taken care to instill the legal framework needed. We must never compromise the equal application of and access to the law. Doing so is what boils down to an indictment on freedom and equality.

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