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2 RECOGNITION OF MUSLIM MARRIAGES
2.1 Statutory recognition
On pages 215±216 of your prescribed textbook you will see that several
Acts afford recognition to Muslim marriages. You will note that many of
the Acts apply to religious marriages, regardless of whether they are de
facto monogamous or polygynous. On page 216 of the textbook you will
also learn that in Daniels v Campbell the constitutional court held that a
surviving spouse in a monogamous Muslim marriage qualifies as a
``spouse'' and ``survivor'' in terms of the Intestate Succession Act 81 of
1987 and the Maintenance of Surviving Spouses Act 27 of 1990, even
though those Acts do not expressly provide that Muslim marriages fall
within their ambit. You must be able to discuss the Constitutional Court's
decision in Daniels v Campbell.
ACTIVITY
Mr and Mrs Omar are married by Muslim rites. Neither of them has ever
concluded a civil marriage. Indicate whether the following statements are
true or false. You do not have to explain your answer.
(1) Because Muslim marriages are not fully recognised Mrs Omar cannot
be compelled to testify against Mr Omar, even in circumstances where
a wife who is a party to a civil marriage could be compelled to testify
against her husband.
(2) Because Muslim marriages are not fully recognised property Mrs
Omar inherits from Mr Omar is not exempt from transfer duty.
(3) If the Omars's marriage is terminated by Mr Omar's death, Mrs Omar
can institute a claim for maintenance against Mr Omar's estate in
terms of the Maintenance of Surviving Spouses Act 27 of 1990 in so
far as she is unable to provide for her reasonable maintenance needs
from her own means and earnings.
FEEDBACK
(1) False. (On p 215 of the textbook you will see that s 10A of the Civil
Proceedings Evidence Act 25 of 1965 and s 195(2) of the Criminal
Procedure Act 51 of 1977 recognise religious marriages for the
purposes of compelling a spouse as a witness.)
(2) False. (On pp 215±216 of the textbook you will see that s 9(1)(f) read
with s 1 of the Transfer Duty Act 40 of 1949 exempt property which
one spouse in a religious marriage inherits from the other spouse from
transfer duty.)
(3) True. (In Daniels v Campbell the Constitutional Ccourt held that a
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