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Article by listed attorney: Fawzia Khan

In Islam, getting married is regarded as one of the main component in keeping the fabric of society together. Having a lawful spouse acts as the foundation for families to be created and from which communities eventuate. In most instances Muslim couples in South Africa who are married by nikkah will also get married according to the civil law. We have 3 different types of marriage regimes, in community of property and out of community of property (with and without the accrual system). In an in community of property marriage, both husband and wife equally share the risk and benefits of a joint estate. In fact their estate will be regarded as one estate. They are both liable for the debts and liabilities of the other, regardless of which one of them incurred the debt. Whatever property either of them had either prior to or during the marriage belongs equally to both of them. In the event of one of spouse becoming insolvent, the other spouse, in most instances, will also be sequestrated. Harsh but true. Any couple, who get their marriage registered without any other formality, will be deemed to have automatically entered into an in community of property marriage.

The role of a husband and wife is clearly set out in Islamic law. A husband is required to support his family. Whilst the husband is given this responsibility, the wife is given full autonomy to deal with her affairs, without being required to share in the responsibility of the expenses of the family household. Should the wife choose to work, any income she derives is solely for her own use and benefit. She is therefore not required to support the children. This is different to the South African legal system, which says that both husband and wife are jointly responsible for the maintenance of the children. The correct marital system applicable to Muslim couples is one, which is not an in community of property. 

To make the marriage Shariah compliant, the couple would be required to register an ante-nuptial contract (ANC), out of community of property without application of the accrual system. A couple who get married only by way of nikkah, without registering the marriage in terms of South African law, would be considered to have entered into a customary marriage. This type of customary marriage would not be recognized in terms of the Matrimonial Property Act. When the marriage terminates either through death or divorce, there is no accruing of the assets of the couple. There is also no distribution of the assets on dissolution of the marriage.

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