The Structure of Muslim Marriages under SA Law
South African law does not formally recognize Muslim marriages. Therefore, parties to a Muslim marriage are considered “unmarried”. However, According to Shariah law, Muslim marriages are out of community of property. This means that the assets and liabilities with which the spouses entered the marriage, remain their sole and exclusive assets and liabilities after the marriage.
For example, Allie married Rashieda during December at a Taronga Road Mosque in Crawford. The imam who attested the Nikkah was not a home affairs marriage officer. Allie bought the house that he lives in before the marriage. In order to finance the purchase of the house, Allie bonded the house to ABC Bank. Once Allie married Rashieda, nothing changed – the house remained in his name (asset) and he remains the sole debtor under the bond (liability). Of course, this does not mean that Allie and Rashieda cannot agree on how to manage the household finances. Rashieda can assist Allie in paying the bond, if they so wish. With that being said, the circumstance also does not mean that Rashieda becomes the owner of half of the property merely by contributing to household expenses. There are certain conveyancing procedures which have to be followed in order for this to take place.
How do Muslim marriages affect the Offer to purchase
A spouse to a Muslim marriage has full independent legal and contractual capacity. As an estate agent, you want to find out how your seller and/or your buyer are married. If your seller and/or buyer are married purely in terms of Shariah law, neither of the spouses have to consent to either of them signing the offer to purchase for a property sale, unless they are co-owners of the property.
Muslim marriage and co-ownership
Because Muslim marriages are considered as out of community of property marriages in terms of Shariah law, and “unmarried” in terms of SA law, there is nothing preventing the couple from buying and/or owning property together. This is referred to as co-ownership. Each spouse will own a 50/50 undivided share in the property. Should you wish to sell the property, both spouses will be required to sign the offer to purchaser.
It is highly recommended that parties who purchase property as co-owners enter into a co-ownership agreement. In the case of Ismail v Ishmail and Others, the Supreme Court of Appeal held that Muslim marriages do not enjoy the same protection which civil marriages enjoy. And so, it therefore becomes vital for the parties to protect themselves and regulate what happens to the property in the event that the marriage dissolves by divorce, or in the event that there is a dispute as to the property.
Should you require assistance in drafting the co-ownership agreement, please do not hesitate to contact us.
Transfer Process and Muslim Marriages
Muslim couples who purchase and mortgage property together are described as “unmarried” or “married according to Muslim rites” in the power of attorney and deed of transfer. The same applies to a spouse who purchases and mortgages as a sole-purchaser/owner. No special partnerships or arrangements have to be made for spouses to purchase and mortgage property together.
Summary
In summary the following can be said about Muslim marriages and property transactions:
- Muslim marriages are not recognised in terms of SA Law.
- Muslim marriages are in fact out of community of property (according to Shariah), and the spouses do not share in the assets and liabilities of each other.
- Each spouse has independent legal and contractual capacity before and after the marriage.
- Spouses can purchase property together and become co-owners. In that event, we strongly recommend that spouses enter into a co-ownership agreement to regulate the consequences of dissolution of the marriage and in the event that there is a dispute as to the property.
- Spouses who are co-owners can mortgage the property together.
- Should your spouse be the sole owner of the property, and you contribute to the upkeep of the property or mortgage bond, this does not entitle you to a share in the property.
- Conveyancers treat Muslim purchasers and sellers as “unmarried” or “married according to Muslim Rites” with separate estates.
- Either of the spouses can be a sole owner of a property.
This position does not apply to Muslim couples who later marry before a marriage officer at Home Affairs or conclude a dual marriage. Follow our next blog on the various types of Muslim marriages and what this means for you as a buyer, seller or estate agent.
