MUSLIM MARRIAGES

Muslim marriages are now legally recognised by South African law. Up until 2022 they were not legally recognised. This changed after a Constitutional Court decision in Women’s Legal Centre Trust v President of the Republic of South Africa and others (2022) which ruled that Muslim marriages must be legally recognised and that certain sections of the Divorce Act of 1979 and Marriage Act of 1961 are unconstitutional.

The Court judgement noted that various human rights such as the right to equality, dignity and access to courts for women in Muslim marriages were infringed. It noted that the rights of children born from Muslim marriages were also infringed. The Court held that:

• The common law definition of marriage was invalid where it excludes Muslim marriages.
• Specific sections of the Marriage Act and the Divorce Act were not consistent with the Constitution because:
  • both these Acts did not recognise Muslim marriages which have not been registered as civil marriages, as valid marriages in South Africa
  • the Divorce Act fails to provide for the redistribution of assets when a Muslim marriage is dissolved
  • the Divorce Act fails to provide for mechanisms to protect the welfare of minor or dependent children from Muslim marriages when a Muslim marriage is dissolved
  • the Divorce Act fails to make provision for the forfeiture of the patrimonial benefits of a Muslim marriage at the time when it is dissolved.

The Constitutional Court judgment gave Parliament time (up to June 2024) to amend these Acts according to its ruling. The judgment specifically said Parliament must make laws that recognise Muslim marriages as valid marriages and regulate the consequences of such marriages.

As a result of this Court judgment, the Divorce Amendment Act (No 1 of 2024) has been passed and it provides recognition and protection of Muslim marriages in South Africa. It integrates specific provisions for Muslim marriages into the existing Divorce Act and addresses critical legal issues that were previously lacking for Muslim marriages. (See Ending a Muslim marriage)

The Draft Marriage Bill (2023) aims to consolidate all laws relating to marriage into one piece of legislation and recognise all types of intimate partnerships regardless of gender, sexual orientation, or religious, cultural and other beliefs. All South Africans and residents in the country of all sexual orientations, as well as religious and cultural beliefs, will be allowed to have legal unions in line with constitutional principles. This includes Muslim and Hindu marriages. The Bill outlines measures to prevent unions such as child and forced marriages and those done in the absence of the other party.

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 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.

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 husband’s intestate estate.

In the case of Hassam v Jacobs N.O. and others [2008] 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.

HINDU MARRIAGES

Traditional Hindu marriages are not recognised by civil law. But if spouses go through a civil marriage ceremony either in terms of the Marriage Act or the Civil Union Act or are married by a 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 Draft Marriage Bill (2023) aims to consolidate all laws relating to marriage into one piece of legislation and recognise all types of intimate partnerships regardless of gender, sexual orientation, or religious, cultural and other beliefs. All South Africans and residents in the country of all sexual orientations, as well as religious and cultural beliefs, will be allowed to have legal unions in line with constitutional principles. This includes Muslim and Hindu marriages. The Bill outlines measures to prevent unions such as child and forced marriages and those done in the absence of the other party.

COURT DECISIONS 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.