RECENT RECOGNITIONS OF MUSLIM MARRIAGES AND EXEMPTING TRANSFER DUTY

​In what has been hailed a landmark victory for the recognition of Muslim marriages, the Supreme Court of Appeal (SCA) ruled that the Marriage Act 25 of 1961 and the Divorce Act 70 of 1979, are inconsistent with the Constitution.

Divorce in Islam can take a variety of forms, some initiated by the husband and some initiated by the wife. The main traditional legal categories are talaq (repudiation) mutual divorce(khul'), judicial divorce and oaths

In South Africa, the general practice of Muslim Divorces, occur with the husband’s verbal initiation (talaq al-sunnah) followed by the Iddah (Iddat) period upon which expiration the MJC will issue a divorce certificate.

The receiver of Revenue has expressed, in writer’s first case for the application for exemption of transfer duty that the Talaq date is of the utmost important when considering the exemption of transfer duty. 
One of the requirements in consideration for a transfer duty exemption is that the date concluding the deed of sale between the parties must be dated after the talaq.  In this event and to protect the parties’ rights, it is my suggestion to evidence the talaq with the appropriate witnessing thereof, so that there is certainty as to this date.
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In writer’s opinion it is also essential that a settlement agreement, is concluded, wherein the terms of the property acquisition is set out there-in prior to concluding the Deed of Sale.  The terms of both agreements must specify the half share acquisition and an objective value in respect thereof. 
We welcome any queries or comments about your experience, when transacting in support of the recognition of muslim marriages.