Trajectories in Muslim family law reform in South Africa

Abstract

In the context of a review of the study of Islam in South Africa, this paper traces an intellectual and activist journey working in Muslim family law reform. Analytically, it focuses on changes in Muslim legal practice that were born from the hardships produced by the legal non-recognition of Muslim marriages in South African law, the social and legal marginalisation of Muslim women and the resultant impoverishment of Muslim wives. The paper finds that in the gap produced by legal non-recognition, some new legal practices have emerged. Bookended by the work of the Commission for Gender Equality in the late nineties and that of the Muslim Personal Law Network more than twenty years later, key themes running through the decades-long process include a concern for the nature and integrity of the shariah in the processes of reform, as well as the location and value of women’s experiences of (un)ethical outcomes in the application of Islamic laws of marriage and divorce. Responses to the law reform process bring to light a normative and reinterpretive approach, the former characterised by ideas of gender complementarity and the latter by gender equality. Further, as the State and Ulama have struggled over who and what would constitute shariah and the substance of Islamic laws on marriage and divorce, through the efforts of gender activists and reformminded scholars and practitioners there has emerged a parallel process of applied law reform, represented in the practice of personalised nikāḥ contracts and women’s khul’a pronouncements, both guided by the idea that women in Muslim marriage (ought to, if they do not already) hold full legal capacity. This legal responsiveness is producing new Muslim family law practices, which allows us to suggest that Muslim family law functions as a living law guided by ethical outcomes. The study of Islamic Law in South Africa is potentially set to encompass these new trends through a new degree offering at the University of Cape Town (UCT).