Muslim And Hindu Marriages

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The Non-Recognition of Islamic and Hindu
Marriages in South Africa
Islamic and Hindu Marriages are not legally
recognised in South Africa
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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 doesnt 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 laws most recent changes, Muslim
  marriages will now have recognition of sorts
  while Hindus 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.

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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.

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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.

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• 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.

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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.

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• 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 couples marriage
  in terms of Hindu rites is afforded the same
  legal securities and rights as its other marriage
  counterparts. 

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Learn more
https//www.martinvermaak.co.za/the-non-recognitio
n-of-islamic-and-hindu-marriages-in-south-africa/