The ideology of a rainbow nation has been at its peak for the past 25 years. Although it has lost so much of its appeal today, it has always been a widely explored subject. It is based on the supposition that South Africa is one of the most diverse countries in the world and that this diversity is one which needs to be embraced. This diversity postulates that there is room for more than debates on race and the inclusion of culture, tradition, and class. In 1994, the world witnessed as South Africa dismantled white supremacy which formally put an end to the Apartheid regime and until then, only civil marriages concluded under the Marriage Act were legally recognised in South Africa. Post 1994, the new Constitution has enabled the recognition of different forms of marriages, including traditional and religious marriages. But these rights have not been interpreted into law for all marriages. Presently, apart from civil marriages, only customary marriages, and same-sex unions are recognised under our law, leaving Muslim and Hindu marriages unrecognised by our law.
Why are religious marriages unrecognised by law?
Both Muslim and Hindu marriages are not chaperoned by a civil ceremony, either in terms of the Marriage Act or the Civil Union Act and are not recognised in South Africa. This means that the Parties to such marriages are deemed to be unmarried and do not enjoy the same legal rights and protection as those having entered civil marriages. The reasoning behind the non-recognition of Muslim and Hindu marriages stems from the fact that Muslim and Hindu Priests are not designated as marriages officers, although their designation is possible in terms of the Marriage Act. Moreover, non-recognition of Muslim and Hindu marriages is due to their potential polygamous nature which is irreconcilable with the Marriage and Civil Union Acts. However, the position regarding Muslim marriages has changed slightly.
The current position of religious marriages in South Africa
Since 2014, it is accepted that a Muslim priest, known as an Iman, who has been registered as a marriage officer in terms of the Marriage Act, may solemnise a Muslim marriage. The consequence of such a Muslim marriage, will take the same form as that of a civil marriage. Where an Antenuptial Contract is not entered into by the spouses, the marriage will be in community of property. A marriage certificate will serve as proof of the existence of the marriage. However, this does not automatically legalise all Muslim marriages. Muslim marriages that are not solemnised by a registered Iman will still be regarded as “unmarried” or “married according to Muslim Rites.”
Regrettably, Hindu marriages are still not recognised as legal marriages in South Africa and the parties thereto are regarded as “unmarried” or “married in terms of Hindu Rites” and in cases where a Muslim or Hindu man dies, his wife will receive a death certificate that states “never married.” It is therefore recommended that parties to such marriages conclude an Antenuptial Contract and have a separate civil ceremony to ensure that the legal consequences of marriages under South African law are applicable to their marriage.
The latest developments
In 2018, the state’s failure to legally recognise Muslim marriages was challenged by The Women’s Legal Centre, in the Western Cape High Court where the Court held that by not having legislation that recognises and regulates the marriages, the state violated several constitutional rights including the rights of Muslim women and children to equality, dignity and freedom of religion. The Court ordered the state to prepare, initiate, and bring into operation legislation to recognise and regulate Muslim marriages by 31 August 2020 but this judgment was appealed by the Constitutional Court and the deadline suspended pending the outcome of the appeal by the Supreme Court of Appeal. For assistance, contact an expert at SchoemanLaw today!
Written by Aphelele Mabanga, Candidate Attorney, Schoeman Law