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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