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2014 Acta Juridica 160 (2014)
Faskh (Divorce) and Intestate Succession in Islamic and South African Law: Impact of the Watershed Judgement in Hassam v. Jacobs and the Muslim Marriages Bill

handle is hein.journals/actj2014 and id is 168 raw text is: Faskh (divorce) and intestate succession in Islamic and South African law: Impact of the watershed judgment in Hassam v Jacobs and the Muslim Marriages Bill* NAJMA MOOSAt AND MUNEER ABDUROAFt This article deals with intestate succession against the background of the complex Islamic legal aspects offaskh and talaq as forms of divorce. It elaborates on the divergent views held by Islamic scholars and explains the foundational principles of Islamic law. The article offers a new perspective on the ground-breaking case of Hassam vJacobs and sheds light on its surrounding circumstances and factual background in order to indicate that the Cape High Court may have unnecessarily pronounced on the recognition of polygynous Muslim marriages, an issue which in fact may not have been before the court. The article also examines how the Islamic law of divorce is practically administered by Islamic organisations within Cape Town. Practical recom- mendations are offered for dealing with the complexities of recognising and administering aspects of Islamic law in secular courts and the interaction with Islamic bodies administering Muslim personal law. I INTRODUCTION Currently in South Africa, potentially polygynous' Muslim religious marriages that have not been solemnised as heterosexual civil marriages in terms of the Marriage Act2 or the Civil Union Act are void. Once solemnised in terms of the provisions of these Acts, Muslim marriages are valid, but in order for this to occur such marriages must be monogamous. Since the abolition of apartheid and the introduction of our first * We acknowledge, with thanks, Professor F du Toit and Sheikh S Allie for their insightful contributions and Professor I Leeman for his editorial assistance. The article forms part of a larger research project for which ethical clearance was obtained from the University of the Western Cape (UWC). Informal telephonic conversations and emails were utilised to gather some of the information, and used with permission. t BALLB LLM LLD (UWC), Professor ofLaw, Department ofPrivate Law, UWC. * LLB (Medina), LLB, LLM (UWC), Sheikh and doctoral candidate. Islam permits a Muslim husband to be married to up to four wives at the same time. See N Moosa Unveiling the Mind: The Legal Position of Women in Islam - A South African Context 2 ed (2011) 37. 2 Act 25 of 1961. Act 17 of 2006. 160

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