THE draft Muslim Marriages Bill has barely come off the printing presses but is already creating a storm of debate within the Muslim community.

Opposition to the bill is likely to be strong and loud from different factions within the community - including the staunchly devout, fundamentalists , conservative patriarchs and feminists.

In the exuberant years after the 1994 democratic election, the legal recognition of Muslim marriages was flagged as one of the top priorities in the government's formidable legislative programme.

It has taken 14 years to fulfil the promise made in 1998 by former justice minister Dullah Omar in the National Assembly - years in which only Muslim wives with the means, or those with the support of non governmental organisations, fought in the courts for their rights to inheritance, employee benefits of their deceased spouse, or a share of assets after divorce.

These court battles often took years to finalise. Less fortunate Muslim women - including wives in polygamous marriages - were left destitute or thrown out of their family homes.

While the government moved fairly swiftly to give legal recognition to marriages under African customary law - which affected many more people in SA - the lack of legal recognition of religious marital unions remained unresolved.

Hindu marriages are still not recognised . Jewish couples in SA tend to have civil marriages in addition to religious ones.

The draft Muslim Marriages Bill, which will give legal recognition to unions sealed by Islamic rites, has been adopted by the Cabinet and released by the Department of Justice for public comment.

The bill deals with the registration, dissolution and termination of Muslim marriages according to the precepts of Islamic law, as well as the distribution of assets and the custody of children, maintenance and compulsory mediation.

It tries to create an intersection between the Marriages Act and Islamic rites by giving recognition to a marriage officer - a Muslim with knowledge of Islamic law who will be appointed by the minister of home affairs and who would officiate over legally recognised Muslim marriages.

The draft bill gives legal recognition to Islamic law in recognising the reasons for the dissolution of a marriage and the way in which a divorce can be effected, and also recognises that a Muslim man may be polygamous . One of the reasons for the long delay in finalising the bill, says the leader of the Al Jama-Ah political party, Ganief Hendricks, was because of the difficulty in accommodating the Muslim community's wish to govern its affairs according to sharia law.

He says a huge fight is brewing over the bill because it attempts to govern ecclesiastical matters that should be left in the hands of the Muslim judicial authorities. "The daggers are out as religious leaders and civil society push the agendas of their sects and constituencies," Mr Hendricks said.

"The party has been informed that just last week a very senior religious leader has declared all those who support the Muslim Marriages Bill as apostates and out of the fold of Islam."

The wisdom of Solomon will be required to address this wide diversity of views.

The Al Jama-Ah party believes ecclesiastical matters, as well as mediation, divorce and the custody of children, should be left out of the bill.

It says it should merely be an enabling piece of legislation to amend other laws such as the Marriages Act, Deeds Registry Act, Intestate Succession Act and Maintenance of Surviving Spouses Act, to give legal consequence to Muslim marriages by making them equivalent in status to all other marriages.

The Muslim Judicial Council believes there should be a special Muslim judicial division manned by presiding officers (imams) to deal with matters of Muslim personal law, as was proposed in an original draft bill. A Johannesburg Muslim magistrate supports this view.

"Legislation should not dabble in ecclesiastical (sharia) jurisprudence," Mr Hendricks says.

A cause of concern for women's activist groups is the "opt out" clause, which says the bill will apply to all Muslim marriages concluded both before and after the commencement of the act, unless the parties jointly decide not to be bound by its provisions. Women in "opted out" marriages will have the same lack of rights that they suffered previously .

Also, in terms of the bill, all Muslim marriages that are registered under the act will be deemed to be out of community of property, excluding the accrual system in the absence of an antenuptial contract.

Women's Legal Centre attorney Hoodah Abrahams- Fayker says marriages in community of property will be more beneficial to women and also compliant with sharia law.

Historically, because Muslim marriages were not legally recognised, they automatically fell out of community of property, giving the husband power over everything and often resulting in women being forced to leave their homes with nothing after divorce - even when they contributed substantially to the marital home for many years.

Ms Abrahams-Fayker says the centre strongly supports the need for legislation governing religious marriages to protect women.

She welcomes the draft bill, though "in its current form (it) differs from previous versions and it remains to be seen how it will be received by the community and whether it will promote women's equality".

She says the centre will make submissions relating to the manner of divorce, the opt-out clause and the default position of the marital regime, as these provisions "will do little to advance Muslim women's equality".

The South African Law Reform Commission is investigating the need for law reform in relation to Hindu marriages.

ensorl@bdfm.co.za