I previously blogged about Jewish religious law that governs marriages and divorces of Jews in Israel. I also blogged about Jewish divorces in other countries. This time I asked my colleagues in the Global Legal Research Directorate for examples of countries that recognize the application of religious matrimonial laws. In this blog post I will highlight whether and the extent to which three selected countries in the Middle East and Africa recognize marriages and divorces conducted in accordance with religious laws. In a follow-up post I intend to address the extent to which religious matrimonial laws are recognized in European countries.
The three countries selected for this post are Egypt, Kenya and South Africa. Egypt, a country with an overwhelming Muslim majority, applies Muslim law to family matters. Kenya and South Africa, countries that have traditionally recognized tribal marriages and divorces, differ in the extent to which they recognize religious matrimonial status. Kenya generally recognizes religious marriages and divorces subject to minimum mandatory state law requirements (except for Muslim marriages, to which the state law requirements do not apply). Unlike Kenya, South Africa restricts recognition of religious based marital status to limited circumstances for the purpose of protecting parties to such marriages and their children.
George, our senior legal information analyst for several Arab countries has provided the following information:
Under Islamic Law, a valid marriage must include the following components:
1) a clear proposal ; 2) a clear acceptance; 3) competency of both parties; 4) free consent of the parties, or of their guardians; 5) presence of at least two competent witnesses; 6) marriage dowry; and 7) the marriage contract must not violate the public order and the principles of Islamic law. Secular marriages with no religious ceremony, same sex marriages and marriages that involve huge age differences (60 or 50 years) between the male and underage female would be considered in violation of these principles.
There are two types of divorces under Islamic law: 1) Revocable divorce and 2) Irrevocable divorce.
Revocable divorce is a type of divorce that allows the husband to divorce his wife two times. Once a man has divorced his wife, the wife’s period of idda (waiting period) begins. The husband may return to his wife at any time during the period of idda. The husband could revoke his divorce verbally either directly to his wife or indirectly by telling someone else, or he could have revoked it through physical intimacy with his wife.
There are two types of irrevocable divorces: (1) major irrevocable divorce and (2) minor irrevocable divorce. In a major irrevocable divorce, the husband declares to his wife three times that he is divorcing her: either three times on one occasion or on three separate occasions. It is permissible for the husband to remarry his wife only after she has consummated her marriage to another man who has then either divorced her or died. A minor irrevocable divorce becomes final if the idda expires and the two parties do not reestablish their marital relationship. The woman then has the right to marry another man.
For further information:
Ron Shaham, Family and the courts in modern Egypt : a study based on decisions by the Sharīʻa courts, 1900-1955 (1997) ;
Kenneth M Cuno, Modernizing marriage: family, ideology, and law in nineteenth and early twentieth century Egypt (2015);
Nadia Halim Seliman Family law in Egypt and its amendments (2014).
Hanibal, our African law specialist and a fellow In Custodia Legis blogger, provided information on Kenyan law. While generally recognizing religious marriages and divorces subject to civil law requirements, Kenyan law exempts Muslim matrimonial issues from these requirements. Hanibal notes:
Kenya recognizes three different forms of marriage: Statutory marriage, customary (tribal) marriage and religious marriage. (Marriage Act No. 4 of 2014, § 6 (May 20, 2014). While the Law specifically recognizes religious marriages contracted under Christian, Hindu or Islamic rites, in an October 2015 decision, the High Court at Nairobi held that this “must be read to include every marriage celebrated in accordance with the faith of a religion duly registered in Kenya.” (Mary Wanjuhi Muigai v Attorney General & another  eKLR para. 64). While Christian and Hindu marriages are monogamous, Islamic marriage, much like customary marriage, is recognized as polygynous in nature. (Marriage Act § 6.)
Although the law permits parties to contract marriage under religious law, it imposes certain, universally applicable minimum requirements. For instance, it sets the minimum marriageable age at eighteen. (Id. § 4.) It also requires that marriages may be contracted only with the consent of the parties. (Id. 3.) Significantly, the Law states that “[p]arties to a marriage have equal rights and obligations at the time of the marriage during the marriage and at the dissolution of the marriage.” (Id.) This is close to a verbatim restatement of a constitutional provision. (Constitution of Kenya, 2010, § 45). However, the Law also states that, subject to the above stipulation of equality of spouses, “the parties to an Islamic marriage shall only have the rights granted under Islamic law.” (Marriage Act, § 3.)
Violation of the mandatory, minimum requirements has one of two possible effects: it may render the marriage (non-existent) or voidable (a marriage, which is valid marriage but not in full compliance with all the requirements for contracting a valid marriage and one that could be voided as the result). While substantive defects such as failure to meet the minimum age requirement, fraud or lack of the required consent on the part of either party to a marriage would render the marriage void, defects of a procedural nature such as failure to register the marriage would render it voidable. (Id. §§ 11 & 12.)
When it comes to the issue of dissolution of marriages, the 2014 Law appears to treat different forms of religious marriages differently. While it lists various grounds under which a person who contracted a marriage under the Hindu or Christian rites may approach a court to seek dissolution, when it comes to Islamic marriages, it simply states that Islamic rites govern dissolution of Islamic marriages. (Id. §§ 65, 70 & 71.)
The same exception is made for Islamic marriages with regard to division of property at divorce, a matter governed under the 2013 Matrimonial Property Act. Under this Act, in the absence of a prenuptial agreement, “ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.” (Matrimonial Property Act No. 49 of 2013, § 7 (Jan. 16, 2014). The Act adopts a broad definition of what amounts to contribution, which includes non-monetary contribution in the form of domestic work, child care, companionship and farm work. (Id. § 2.) This law does not bind Muslims. (Id. 3.)
Similarly to Kenya, South African law generally recognizes civil and customary marriages. Unlike Kenya, however, religious marriages per se in South Africa are not recognized, except under limited circumstances for protection of the parties to such marriages and their children. According to Hannibal:
South Africa accords full recognition to three forms of marriage. These are: civil marriage (governed by common law and the Marriage Act 25 of 1961 and its subsidiary legislation); customary marriage (governed by the relevant customary rites and regulated by the Recognition of Customary Marriages Act 120 of 1998); and civil union/marriage (governed by the Civil Union Act 17 of 2006). (Jacqueline Heaton & Anneliese Roos, Family and Succession Law in South Africa 73 (2nd ed., 2016)).
South Africa does not fully recognize religious marriages. A draft Muslim Marriages Bill, aimed at recognizing Muslim marriages, which was published for public comment in 2011, has yet to get a vote in Parliament. (Heaton & Roos, supra at 74.) Although the South African Law Reform Commission is said to be working on a project for the recognition of Hindu marriages, no bill exists yet. (Id.)
Religious marriages are recognized under statutory and case law for specific, limited purposes. For instance, for purposes of domestic violence, the country’s applicable law defines domestic relationship as inclusive of religious marriages. (Domestic Violence Act 116 of 1998, § 1 (Dec. 15, 1999.) The definition of marriage, under the Children’s Act of 2005 (§ 1.) includes religious marriages. Under the Estate Duty Act of 1965 (§§ 1 & 4.), the exemption from estate duty of property accruing to a surviving spouse extends to persons in religious marriages. In 2009, the Constitutional Court of South Africa confirmed the decision of the High Court, Cape Provincial Division, holding that the exclusion of widows of a Muslim marriage from the application of the rights accorded to spouses under the Intestate Succession Act is a violation of the equality clause of the South African Constitution and, therefore, unjustifiable. (Hassam v. Jacobs NO and Others 2009 (5) SA 572, 593 paras. 48 & 57.)
In 2014, in a case involving a plaintiff married under Islamic rites to a man who was already married to another woman under the Marriage Act, the High Court, Western Cape Division, Cape Town held that a wife in Islamic marriage is entitled to seek alimony and a share in her husband’s pension interest under the Divorce Act 70 of 1979 (§§ 7(2) & (8).) and that the pre-existing civil marriage does not bar such claims. (R v R and Others  2 All SA 352, para 61.2; Jacqueline Heaton & Hanneretha Kruger, South Africa Family Law 246 (4th ed., 2015)).
Stay tuned for the upcoming post on religious marriages and divorces in Europe.