Muslim marriage law should be supported

The Constitutional Court has reserved judgement on an application brought before it which seeks an order to compel parliament and the president to enact a law recognising Muslim marriages.

The court according to the Mail & Guardian link above appears to have narrowed its problems down to two issues ie whether it can be the court of first instance and secondly whether the court has the necessary powers to order the executive to enact the law prayed for.

These are legal questions best answered by Professor Pierre de Vos, who is the fundi on Constitutional Law, and the courts themselves who will rule on this shortly.

Notwithstanding the fact of whether the judiciary can or can’t compel the executive to enact law in the given circumstances or whether the applicant will be required to commence the proceedings de novo in a lower court, the question remains should religious groups be allowed to regulate marriage in terms of separate laws?

In addition bear in mind that should the courts be unable to assist the community there is nothing stopping a Muslim marriage bill being introduced into parliament in the ordinary course.

The question is should this be entertained?

At the outset my reservation was that the proposed law might be prescribed for young Muslim couples who wish to marry. Some may not wish to be bound by Sharia law and prefer to marry in accordance with our civil law. This has been dealt with in the draft by allowing couples to decide for themselves whether they wish to opt in or out of this marital regime.

The other issue was how would this impact on prevailing law?

In truth Muslims, Jews and other religions usually have a religious marriage in addition to their civil one. This means that where they separate a Jewish or Islamic divorce is also required should they wish to marry within the faith again.

Issues of custody, maintenance and the like are not at odds with prevailing law in these areas. Often religious communities will step in and give support to indigent parties while the courts provide the teeth to ensure that those responsible attend to make payments and exercise custody in accordance with the court order and our law.

In terms of the Jewish community many issues are referred to the Beth Din in order to test whether they comply with the laws of the religion. This has never clashed with the laws of the country which it is designed to respect.

As a specialist criminal attorney who has seen enough filth and depravity arising out of modern society to last me a lifetime, I can fully appreciate why communities would call for value systems that are set out within their religion.

As it will be in the alternative and at the discretion of the couple concerned, I believe that this choice should be available to communities in accordance with a law being enacted to cater therefore.

Of course you lot will have your own ideas.