Under the current legal dispensation in SA, there are three main propriety regimes that could govern marriages. A ‘propriety regime’ is a system that deals with the monetary side of marriage – who will own or be liable for what, and in what proportion.
The first regime (plan / programme) is called “in community of property and community of profit and loss”, or more commonly “community of property” (COP). Simplistically explained, whatever each spouse owns at the beginning of the marriage will thereupon belong to both equally. Similar, whatever liabilities each spouse had at the beginning of the marriage will be shared by both. Further to that, the spouses shall share the assets acquired, and the liabilities incurred during the subsistence (continuation) of the marriage. There are a number of specific exclusions, which are beyond the scope of this brief article.
b) Out of COP with Accrual
The second regime is called “Out of community of property, with the accrual system”. Essentially, in this system each spouse keeps what they had at the beginning of the marriage, and each is responsible for their own liabilities that were incurred before the marriage. However, upon the dissolution (coming to an end) of the marriage, an account will be taken of the growth (accrual) of each spouse that came about during the subsistence of the marriage. The spouse who had more growth will have to give half of the extra growth to the one that had the lesser growth.
c) Complete Separation
The third regime is called “out of community of property with exclusion of profit and loss and with exclusion of the accrual system”. In more simplified terms, each spouse remains totally independent of the other in respect of property. Each spouse will own its own assets and be liable for its own debts, whether before, during or after the marriage.
The first regime applies automatically to marriages registered in South Africa. Should a couple wish to have their marriage registered under the second or third regime, they will have to, prior to registering the marriage, enter into an ante-nuptial contract (ANC). ‘Ante’ means before, ‘nuptial’ means marriage. This contract is executed by a notary (a special type of attorney) and registered at the Deeds Office. The procedure is relatively simple.
In terms of the Shari’ah, spouses have totally independent estates. This is the equivalent of the third regime of Complete Separation. Therefore, the position of the Shari’ah can easily be accommodated for by registering one’s marriage under the third regime. Should a person’s marriage fall under one of the first two, then the situation could be problematic because of the conflict of laws that arises. The SA secular law will take one view, and the Shari’ah will take different position, which could result in undue hardship. For this reason one should have one’s nikah registered under the third regime.
At present, our courts have recognised the Nikah as “a marriage”, be it a monogamous Nikah (one wife), or a polygamous Nikah (two, three or four wives). However, they have not pronounced with certainty as to whether they will automatically regard a Nikah to fall under the third category or not. Therefore, to avoid all uncertainly and possible negative consequences, the Jamiatul Ulama KZN urges all Muslims in SA to register their Nikahs under the third regime mentioned above.
In this respect, we also call upon Notaries who are willing to offer their services at a nominal fee to please contact the offices of the Jamiat, so that a list of these notaries may be made available to any member of the Muslim public having difficulty in locating a notary.
The second possible area where a conflict may arise between the secular position and the dictates of the Shari’ah would be the area of intestate succession. ‘Intestate’ simply means to die without a valid will, and ‘succession’ refers to the laws of inheritance. In such circumstances, the secular law has its own set of rules by means of which it will distribute the estate of the deceased. This will invariably be in conflict with the Shari’ah.
The simple solution is for every adult Muslim to draw up his/her Islamic Will, which is perfectly valid and recognised by the courts. Thereafter one will no longer be “intestate” (without a will); and the opportunity for conflict would have been easily avoided. The executors of the deceased’s estate will then be legally bound to distribute the estate in accordance with the demands of Shari’ah.
Copies of the ‘Standard Islamic Will’ are available from the offices of the Jamiat at a nominal fee. These standard documents generally suffice for the majority of cases. Those requiring special provisions in their wills are urged to consult an attorney to draw up a will to suit their individual needs. The Jamiat will be most willing in checking the Shari’ah angle of such wills.
By adopting these relatively easy two steps, namely: (1) registering your Nikah as outlined above, and (2) drawing up an Islamic Will, you will be eliminating virtually all possible conflicts that could arise between the secular law and the position of the Shari’ah in relation to the propriety aspects of your Nikah. The Jamiatul Ulama KZN earnestly appeals to all members of the Muslim public to take heed of this call, and adopt these two simple measures. These will give the individual members of the public, peace of mind in knowing that their affairs having been adequately taken care of, and also thwart the move made by certain individuals to conjure anti-Shari’ah laws in the name of Islam.