Traditional Muslim and Hindu marriages are not recognised by civil law. But if spouses go through a civil marriage ceremony or are married by a Muslim or Hindu priest who is a marriage officer, the law will recognize their marriage. The husband then cannot marry any other woman by civil law.

The legal consequences of recognising Muslim and Hindu marriages have been debated in the South African Law Commission and broader public for a number of years but there is as yet no agreement. The recognition of religious marriages has been on the cards for a long time. In the meantime, rights have been given to spouses in Muslim and Hindu marriages in bits and pieces through court cases.

Court Decisions Dealing with Recognition of Muslim Marriages

In the case of Amod v Multilateral Motor Vehicle Accident Fund 1999 (4) SA 1319 (SCA), a surviving spouse from a Muslim marriage was given the right to claim damages for loss of support from the Fund when her husband died in a motor accident.

In the case of Daniels v Campbell N.o. and others 2004 (5) SA 331 (CC), the plaintiff was given the right to claim maintenance from the estate of her deceased husband to whom she had been married by Muslim law, in terms of the Maintenance of Surviving Spouses Act.

In the case of Khan v Khan TPD case no: 82705/03 / A 2705/2003 (not yet reported) a Muslim woman who was party to a polygamous Muslim marriage was given the right to claim maintenance from her spouse in terms of the Maintenance Act.

In the case of Mahomed v Mahomed (2008 ECP), and in Hoosain v Dangor (2009 CPD), the courts recognised the right to claim interim maintenance while waiting for the outcome of the main action which asked the court that Muslim marriages be governed by the Divorce Act.

The courts have recognised the right of a spouse married according to Muslim rites to inherit from her deceased’s husband’s intestate estate.

In the case of Daniels v Campbell N.o. and others 2004 (5) SA 331 (CC), the Applicant was given the right to claim maintenance and inherit from the estate of her deceased husband to whom she had been married by Muslim law, in terms of the Maintenance of Surviving Spouses Act and Intestate Succession Act.

In the case of Hassam v jacobs N.o. and others [2008] joL 22098 (C), where the Applicant was the wife of the deceased in a polygamous marriage, the court allowed both wives to inherit a child’s share of the estate.

Courts Dealing with the Recognition of Hindu Marriages

In the Prag matter (Wynberg court ref.31008MAI000680) the maintenance court recognised the duty to maintain where the parties were married according to Hindu rites. In the Govender matter (govender v Ragavayah No and others (Women’s Legal Centre Trust as amicus curiae) [2008] joL 22653 (D)), a wife was entitled to inherit from her deceased’s husband’s intestate estate to whom she was married according to Hindu rites.