Recognition of Hindu Marriages in South Africa

The Non-Recognition of Islamic and Hindu Marriages in South Africa Islamic and Hindu Marriages are not legally recognised in South Africa

THE NON-RECOGNITION OF ISLAMIC AND HINDU MARRIAGES On 18th December 2020, the Supreme Court of Appeal handed down judgement that our Constitution, which strongly advocates diversity, did not recognise, or even regulate Muslim marriages. This has long disadvantaged vulnerable Muslim women and children. This status also extends to Hindu marriages within the South African Republic.

Our Constitution doesn’t recognise either Muslim or Hindu marriages without a Civil Ceremony being conducted. Absence of this left women degraded as having few if any rights. Now an order is currently under review by the Constitutional Court which has reserved judgement as yet. Based on our law’s most recent changes, Muslim marriages will now have recognition of sorts while Hindu’s must remain hoping.

In recent years, several judgements have criticised policy makers’ inability to ensure that certain action is taken to recognize these marriages and in turn safeguard the rights of vulnerable children and women.

The failure to recognise such marriages has often resulted in these individuals’ rights to equality, dignity and access to courts being violated.

Muslim Marriages prior to the December 2020 Supreme Court of Appeal Judgement For Muslim marriages to be recognised in South Africa, a separate civil ceremony had to be conducted. This had to be done either in terms of the Civil Union Act [No. 17 of 2006] or the Marriage Act [No.25 of 1961].

If this were not done, the marriage would have been treated as a putative marriage out of community of property and with the exclusion of the accrual system.

Further, a decree of divorce was not required, and it was virtually impossible for women to terminate the marriage relationship on her own.

This has often resulted in women being forced to stay in a marriage in which they were not satisfied in – even in the face of violence and heartache.

Through the years, recent developments were made to safeguard some of these rights of these woman, specifically in regard to maintenance and the duty to support a spouse. The recognition of Muslim marriages was not necessary for a spouse to claim interim maintenance and the duty of support owed towards the other was recognised to some extent.

The Supreme Court of Appeal Judgement The Supreme Court of Appeal South Africa The Court held that section 9, 10, 28 and 34 of the Marriage Act and section 6, section 7(3) and section 9(1) of the Divorce Act [No. 70 of 1979] were in inconsistent with the Constitution in respect of the recognition of Muslim marriages in South Africa. It was indicated that the legislation fails to provide mechanisms to safeguard the welfare of minors of Muslim marriages and fails to cater for the redistribution of assets in respect of these marriages.

The court also found that the common law definition of marriage, was inconsistent with the South African Constitution and therefore invalid to the extent that it excludes Muslim marriages.

These invalidities identified by the Supreme Court of Appeal, were referred to the Constitutional Court for confirmation.

It was suspended for a period of twenty-four months to allow for the President and Cabinet with Parliament to remedy the defects identified by the Court.

The order is currently being deliberated on by the Constitutional Court which has reserved judgement.

In the interim of these legislative developments coming into effect, it has been declared that a union validly concluded as a marriage in terms of Sharia law and subsisting at the time of this decision, which has been terminated and which legal proceedings have been instituted but not finally determined as of said date, would be dissolved in terms of the Divorce Act.

Hindu Marriages in South Africa Completed Henna Design of Bride to Be Like Muslim marriages, marriages conducted

by Hindu rites have also been subject to judicial scrutiny in recent years. These marriages are not recognised in South Africa and the parties within a Hindu marriage are only considered as being “married in terms of Hindu Rites”, in terms of our laws.

This is regarded as putative marriages and are deemed to be out of community of property with the exclusion of the accrual system.

It has often been recommended that parties to a Hindu marriage should conclude a separate civil ceremony to ensure that the normal legal consequences of marriages under South African law would also be applicable to the parties’ marriage.

At present, the protection of individuals within a Hindu marriage that occurs only through Hindu rites are limited. The parties are allowed the possibility to claim maintenance, in circumstances where spousal support is required.

Based on the most recent development in our law, now Muslim marriages will enjoy the same rights and legal securities available and afforded to couples of civil marriages, customary marriages and even civil unions.

This is besides the fact that the matrimonial property regime will be regarded as out of community of property.

This will ensure that married Muslim women and men will be able to obtain a decree of divorce, be afforded certain proprietary claims depending on the applicable matrimonial regime and in certain instances even seek the forfeiture of patrimonial benefits in terms of the Divorce Act. Despite these developments, the non-recognition of Hindu marriages in South Africa, still may require reform to ensure that couple’s marriage in terms of Hindu rites is afforded the same legal securities and rights as its other marriage counterparts.

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