Authors: Faatimah Essack – Candidate Attorney
Supervised by Candice Pillay – Director
Freedom of religion is universally recognised as a fundamental human right and this is no different in South Africa but, despite recognition of the right, recognition of marriages conducted under religious laws continues to lag behind.
The Constitution and Bill of Rights create the right to religious freedom, commencing in section 9 where discrimination on the basis of religion is considered to be unfair. The Bill of Rights takes it further and in section 10 recognises the right of all persons to human dignity; dignity being linked essentially to a person’s religious and cultural identity. Section 15 creates the critical right to freedom of religion, belief and opinion, going further to state in Section 15(3) that the State may create legislation to recognise marriages concluded under any tradition or system of religious, personal or family law.
Despite these provisions, only African customary marriages have found legitimacy in our law. The recognition of religious marriages such as those carried out in accordance with Hinduism, Islam, and Jewish tenets has still not been addressed and these must still comply with the duplicate provisions for a civil marriage set out in the Marriage Act (25 of 1961).
This is problematic particularly for Muslim marriages as the definition of marriage in the Marriage Act is a “legally recognised voluntary union of one man and one woman to the exclusion of others while it lasts”. While the gender bias in these provisions was revised in the Civil Union Act (17 of 2006), allowing for same-sex couples to marry, the definition still explicitly excludes marriages of a polygamous nature. The Recognition of Customary Marriages Act (120 of 1998) provides a limited framework for the recognition of polygamous marriages.
However, neither of those two pieces of legislation provide any framework for the recognition of religious marriages, and specifically polygamous religious marriages, such as those permitted in Islam.
There are a number of consequences to the non-recognition of religious marriages.
Firstly, it undermines the dignity of spouses. When a spouse dies, the deceased is reflected in the death certificate as “never married”. This reinforces the notion that their spousal relationship had no legal consequence and significance.
Secondly, the rights of spouses in those marriages to equal treatment and protection under the law is inadequate, as they are only recognised as spouses in limited circumstances.
Thirdly, women in religious marriages are unfairly discriminated against on the basis of gender and sex. Women in Muslim, Hindu and Jewish marriages have difficulty exiting religious marriages.
Finally, the proprietary consequences upon death or dissolution of the marriage are discriminatory towards women. In circumstances where either spouse passes on, it is the family of the husband that takes over the responsibility for the assets in the estate. Unless the parties have contractually affirmed the status of their estate, the surviving spouse will need to go to court to establish the existence of the relationship, relying on the common law “universal partnership” principle to receive their fair share of the estate.
Eleven years ago, Parliament introduced the Muslim Marriages Bill which was approved by Cabinet but has never been promulgated. This has prompted various groups supporting the rights of women to lobby for the recognition of Muslim marriages. One such organisation is the Women’s Legal Centre.
In December 2014, the Centre launched an application in the Western Cape High Court in the public interest seeking relief aimed at providing women in Muslim marriages, and the children born of such marriages, with legal safeguards upon the dissolution of such marriages. In August 2018, a full bench of the Western Cape High Court handed down a judgment in favour of the Centre.
The court held that the President and Cabinet had overlooked their obligation to introduce legislation that would recognise marriages performed in terms of the Islamic faith. Following this judgment, the State was granted leave to appeal to the Supreme Court of Appeal (SCA).
In late 2020, the SCA acknowledged the injustice and stigma suffered by Muslim women in South Africa due to the non-recognition of unions entered into under Sharia law (Islamic law). The court further declared the Marriages Act, the Divorce Act and the common law definition of marriage to be unconstitutional.
The court declared that Parliament is mandated, within a period of two years, to enact specific legislation to recognise Muslim marriages.
While this is a landmark decision that will progress the laws of marriage to assist women in Muslim marriages, it is, however, not retrospective and will only apply to marriages entered into after the envisaged act comes into effect.
Anticipating this prejudice, the court granted interim relief during this 24-month period, enabling women in religious Muslim marriages to approach the court in terms of the Divorce Act to end the marriage.
Despite this long-awaited victory, the plight of Hindu and Jewish religious marriages remains uncertain. It is hoped that the proposed legislation will deal with all religious marriages as envisaged in Section 15(3) of the Constitution and finally put an end to the injustices faced due to non-recognition.
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