CAIRO - A new decision by South Africa pension fund authority allowing a spouse a share of the partner's pension fund upon Islamic divorce was welcomed by Muslims as the first case for officially recognizing Islamic divorce in South African courts.
The Pension Funds Adjudicator's determination is not one which we expect to have any significant impact on the Muslim community, as it does not set any form of binding precedent on any court, Moulana Abdullah Khan of the Jamiatul Ulama KZN (of KwaZulu-Natal) told The Post on Saturday, March 17.
Khan welcomed the decision, adding that the impact on the Muslim community would be minimal.
The community will have to wait and see how the courts take a more informed and researched position on this pending question, he said.
The ruling by the Pension Funds Adjudicator (PFA) last Wednesday came after Tanya Yasmine Tryon complained that Nedgroup defined contribution pension and provident funds had failed to pay the pension interest allocated to her in terms of a divorce order.
Tryon's marriage was first dissolved on September 21 2007.
The dissolution of marriage and the settlement agreement between her and her husband was made an order of the high court in Johannesburg on September 21 2011.
In terms of the settlement agreement, Tryon was entitled to 50% of the value of the fund, calculated from the date of inception, to September 21 2007, being the date of ending of the Islamic marriage.
Nedgroup defined contribution pension and provident funds (first respondent) and its administrator Old Mutual Life Assurance Company (SA) Ltd (second respondent) refused to pay.
However, the PFA decided to officially recognize the divorce which was made according to Islamic tenets.
"Since the complainant was married to the fund member according to the tenets of the Islamic religion, and that their marriage, although not registered as a civil marriage, was dissolved according to the tenets of the religion, the complainant had every right to be considered as a spouse for the purposes of payment of pension interest," said acting adjudicator Elmarie de la Rey.
South Africa Muslims hope the case would open the way towards acknowledging the dissolution of an Islamic marriage as a divorce in terms of the Divorce Act.
The present matter does not deal with the recognition of Islamic law or its application within the secular context, Khan told The Post.
What we have in this case is the application of the laws of contract.
Muslims make up some 1.5 percent of South Africa's 49 million-strong population, according to the CIA fact book.
South Africa Muslims have been struggling for yours to acquire the state's recognition of their Muslim marriages.
Since 1994, South African Muslims have been campaigning for law to allow second wives to inherit.
In 2003, a draft Muslim Marriages Bill was submitted to the Department of Justice for passage. But since, nothing has been made.
Under the proposed bill, courts will enforce regulations of Shari`ah law to those married under Shari`ah, with the assistance of a marriage officer, who is familiar with the Islamic law.
The bill would also deal with registration, dissolution and termination of Muslim marriages, according to the precepts of Islamic Shari`ah.
A section of the law would also deal with distribution of assets and the custody of children, maintenance and compulsory mediation.
Till today, Muslims are still facing strong opposition for a legislation recognizing their inheritance rights.