The short answer
A mother can register the child in the father's name if she has proof of marriage
The whole question
Can my wife still register our coming baby’s birth under my name in my absence, given that we were married under religious law, or do we need to follow other procedures?
The long answer
In terms of the Births and Deaths Registration Act, 1992, “the births of all children born in South Africa must be registered within 30 days of their birth.” That registration must be done by the parent or parents, guardian or any other person legally responsible for the child.
I can see no reason why your wife would not be able to register the baby’s birth under your surname, as you are married. But in the absence of a marriage certificate, she would have to provide other proof of your marriage. This may be what you mean by following procedures.
You may be aware that the Constitutional Court finally confirmed in June 2022 in Women’s Legal Centre Trust v President and others that the non-recognition of religious or Muslim marriages under Sharia law was unconstitutional. This was because it denied Muslim women and children their constitutional rights to dignity, equality and the best interests of children.
Women in civil or customary marriages enjoyed rights of access to courts in terms of the Marriage Act of 1961 and the Divorce Act of 1979, according to which Muslim women were denied because these Acts did not recognise marriages under Sharia law as valid civil marriages.
In the case of a divorce in which children born in civil or customary marriages are involved, the courts assume an automatic judicial oversight role and are obliged to take into account the best interests of the child. This is not the case for children born of Muslim marriages, who are not provided with the same automatic court supervision. Thus, the court found that the non-recognition of Muslim marriages infringes on the best interests of the child.
The Constitutional Court gave Parliament 24 months to amend the laws or introduce new legislation to recognise Muslim marriages, and in the meantime, all Muslim marriages would be regarded as being out of community of property and without accrual. However, in the 24 months before the legislation was amended, women in a religious marriage could access any of the rights in the Marriage Act and the Divorce Act.
Mondaq points out that the common law definition of marriage was also declared to be inconsistent with the Constitution and invalid because it excluded Muslim marriages: "The common law definition of marriage now includes Muslim marriages. Muslim marriages are therefore deemed to be valid and legitimate."
The Western Cape government website says that if you are married, the child will be registered under the father’s surname.
These are the documents that must be submitted to a Home Affairs (DHA) office:
A completed Form BI-24;
A copy of the marriage certificate.
As she would not have a marriage certificate, your wife would have to provide evidence to show that she is indeed married under Sharia law.
Given that Muslim marriages are now recognised by the highest court in the country as valid and legitimate, she should not encounter any problem registering the baby under your surname.
Wishing you the best,
Answered on Dec. 7, 2022, 12:19 p.m.
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