A South African Case Study for the Recognition and Regulation of Muslim Family Law in a Minority Muslim Secular Context

Abstract

South Africa implements a form of secularism that does not rely on a strict separation between religion and state. Instead, it promotes collaboration between the two. Using the example of Muslim family law, the author explores ways in which a secular state can respect the South African minority Muslim community's freedom to apply its religious family laws without impacting negatively on its female members’ right to equality. Three approaches are considered along a religious diversity management spectrum namely, assimilation, accommodation, and integration. Existing and proposed family laws including the Muslim Marriages Bill are examined with reference to the aforementioned approaches. The author concludes that none of the above approaches provide sufficient protection for gender equality. Instead, she promotes a nuanced version of the integration approach, which she calls the Gender-Nuanced Integration (GNI) approach. The GNI approach is applicable to minority Muslim contexts that are governed by a supreme constitution, which protects gender equality. It promotes regulation of Muslim family law only to the extent that it does not conflict with gender equality.

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