The Husband and I got married with only a Nikah. No civil marriage done in court, just our Masjid marriage certificate signed by us and the witnesses and the Moulana. Whether Islamic marriage is or is not recognized in South African law is a complicated question that I would not like to get into (partly because I don’t fully understand the issue). Anyways, at least some parts of Islamic marriages are recognized, but this has been a piecemeal process and there is no overarching legal recognition that can give us complete peace of mind.
So, a few weeks before our Nikah, there was debate and discussion and advice floating around. Most of the lawyers that we worked with strongly suggested that we get civilly married along with performing Nikah. But, when questioned closely, nobody could give us a tangible reason as to why we needed a civil marriage. After weighing the pros and cons and getting confused and un-confused, we decided to have Nikah only – we don’t want any other legal system to lay claim to our lives. But we live in a secular country, so we knew there may be some issues lurking.
Luckily, I seem to have found the issue and there is quite a simple solution. The issue relates to having a will. Before getting into that, some background….
Marriage in Islam is closest to a marriage out of community of property, with no accrual – this means that assets are not shared – it does not all go into one big pot. Islamically, as I understand it, the husband provides for the family, and if the wife earns anything she is free to do with that as she pleases. But in South Africa, the default position is that you are married in community of property – this means that everything is in the pot, mixed together. If you don’t want this system to automatically stick to your marriage, you must write and sign an ante-nuptial contract (ANC) which you must have notarised (signed in front of a person with the fancy title of Notary) and you must have that contract registered (I think that means it must be lodged at Home Affairs, but I may be wrong about where exactly the lodging happens).
Anyways, we did not sign and notarise and lodge a formal ANC.
A few months later, while sorting out some investment issues, the investment uncle asked me whether I had an Islamic will.
The nice thing about this uncle was that he knows about Islamic Finance and investment and he gave me some interesting info on Al-Baraka bank and the various investments and accounts you can open with them.
So, you can use FNB or ABSA or other banks who have windows for Islamic Finance (this means that they have a few Islamic Finance products) or you can use Al-Baraka or another Islamic bank, where the whole range is Shariah compliant. Since I already bank with one of the big 4, I may as well just switch over to their Shariah option. But the Al-Baraka products do look exciting – because we can’t earn interest, earning something in a Halaal way on the cash just sitting in my bank account seems attractive. They have these fixed term accounts (for example the money sits in the bank for 30 days, earns around 3% return, and then you can withdraw it, or reinvest it for another 30 days).
Anyways, just to digress a bit more – Islamic Finance creates structures that allows Muslims to invest, take out loans etc without having to deal with interest. In Islam the idea is that money is a method of exchange, it does not hold value in itself, therefore money can’t make more money. Your investment must be backed by capital or assets or something else physical – you must work productively to make a return on investment. Islamic Finance contracts aim to eliminate interest, speculation and uncertainty. The contracts are based on fairness. So just a tip – go speak to a friendly Muslim investment uncle if you want to make clean investments.
The point of the story is that the Uncle also asked me about my will, and I told him that I didn’t have one. But his explanation of the importance of a will has made me realize why the Husband and I both have to have wills (a thing we plan to do soon). If you are married Islamically and do not have a civil marriage and if there is a dispute on death, there is a chance that the dispute may lead to South African law being applied to your estate (and not Shariah law). To make sure that that doesn’t happen, you must make sure that you have a will – if you have a will, the default South African law position will be overridden and then your estate can be sorted out in a Shariah way.
Islamic law tells us how two thirds of our estates must devolve (ie who gets what), but it also allows us to decide what to do with the last one third. For example, we can bequeath that one third to charity or a friend etc. If you want to make sure that your assets are properly dealt with when you die, you must have a Shariah will. You can even find some templates online (click here for an example). I once read (I think) that making sure your estate is properly dealt with has consequences in the Qabr, so it’s important.
Anyways, the moral of this very long story is – get a will.