South Africa has a heterogeneous society which is governed by a western orientated legal system. Various cultural and religious groups live in accordance with normative rules and customs that are in conflict with the current legal system. The South African Bill of Rights promotes the values of dignity, equality and freedom in a multi-cultural society. The Recognition of Customary Marriages Act was promulgated to recognise diversity by affording recognition to indigenous marriages. A draft bill was compiled to recognise Islamic marriage. Strong opposition was received from predominantly male groups and was also condemned by feminist and human rights groups. On the one hand it was argued that Shari’a is divine law and cannot be altered by temporal law and on the other hand it was argued that Shari’a law is in direct conflict with the Bill of Rights. Both the customary (indigenous) law and Shari’a is predominantly paternalistic in nature. Customary (indigenous) law is recognised in South Africa although the same arguments that are now advanced against the recognition of Muslim marriage law were advanced against the recognition of indigenous law. The paper will investigate how Muslim marriages can be recognised within a Constitutional dispensation.
|Keywords:||Muslim Marriage, Legal Pluralism, Cultural Rights, Religious Rights, Legal Diversity|
Senior Lecturer, School of Law, Department of Private Law, University of South Africa, Pretoria, Gauteng, South Africa
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