The Women's Legal Centre (WLC) says the new Home Affairs marriage certificates being issued are important as a symbolic gesture to the Muslim community but do not legally convert a marriage from a civil marriage under the Marriage Act into one where Muslim personal law applies.
This comes as the Department of Home Affairs (DHA) said it had issued the first South African marriage certificates officially recognising the “type of marriage” as “Muslim”.
“After changes made to the Department’s internal systems, Home Affairs has granted the first batch of 33 marriage certificates for Muslim marriages for the first time in South African history,” the department said in a statement.
The WLC, however, said it had noted the statement with concern.
“It is important to note that Muslim couples can have their marriages solemnised in terms of the Marriage's Act 25 of 1961 and receive a marriage certificate as proof of the validity of the marriage.
“These marriages would be registered and recorded in the marriage register and the national population register as civil marriages because they were concluded under the framework of the Marriage's Act.
“These marriages were and are not recognised as Muslim marriages in law but civil marriages because that is what the legislative framework allows for.”
The WLC said during the mid 2000s, the DHA undertook a project where Muslim clerics were trained on the provisions of the Marriage's Act.
They were then registered as marriage officers under the enabling legislation.
“They could therefore perform valid marriages between couples that could be registered as marriages in terms of the Marriage's Act and have a certificate issued under that enabling legislation.
“These marriages… were and are still not recognised as Muslim marriages in terms of the Marriage's Act, because the legislative framework does not empower the Department of Home Affairs to do so.
“Based on the media release issued by the Department, it appears that the Department has simply updated its IT systems to capture and record these forms of marriages as Muslim marriages concluded under the Marriage's Act as opposed to civil marriages under the Marriage's Act, which was the historic practice,” WLC said.
However, to be recorded as such, these marriages still need to comply with the provisions and requirements set out in the Marriage's Act, and they would need to have been concluded by a marriage officer in terms of the Marriage's Act to enable their legal registration in terms of the framework of the Act and its regulations.
“The DHA cannot simply convert a marriage concluded under the Marriage's Act into a Muslim marriage because the enabling legislation does not make provision for such a conversion and does not confer such powers to the Minister of Home Affairs.”
The WLC said it still awaits compliance from the DHA concerning the order handed down by the Constitutional Court in the case of Women's Legal Centre Trust v The President, in which the Court instructed the Department to develop and introduce new legislation in Parliament or amend existing legislation to recognise Muslim marriages.
“The measures being implemented by the Department of Home Affairs and announced by the Minister fall short of the Constitutional Court's order,” WLC said.
Cape Times