Guest Speaker: Professor Waheeda Amien, University of Cape Town

Title: 'Human rights implications of implementing Alternative Dispute Resolution in South African Muslim Family Law'

Abstract: In South Africa, Muslim marriages were only recently recognised as lawful. The common law definition of marriage was declared unconstitutional by the Constitutional Court to the extent that it did not include Muslim marriages. But the marriages are yet to be regulated by legislation. As an interim measure, parties undergoing or who have obtained a Muslim divorce may acquire a civil divorce through the Divorce Act 70 of 1979.

In the meantime, informal dispute resolution forums operate within Muslim communities, which are the largest religious minority in the country, comprising about two per cent of a population of about 60 million. The forums are mainly accessed in cases of marital disputes, particularly when women approach members of the ulamā (Muslim theologians) for a Muslim divorce called faskh (judicial dissolution of marriage). In these situations, women must prove that they are entitled to a dissolution of the marriage on Islamic law grounds. In contrast, the forums act to confirm talāqs (extra-judicial dissolution of marriage) by issuing certificates to men without the latter having to show any grounds for the divorce.

In this paper, I consider the function of the alternative dispute resolution forums that operate within South African Muslim communities and the extent to which they advance or undermine human rights and are compatible with civil / secular legislation. This becomes especially important when legislation regulating Muslim marriages is implemented because the legality of the marriage will subject it to all forms of civil / secular law including the Mediation in Certain Divorce Matters Act 24 of 1987.