June 27, 2020
Until the end of apartheid in 1994, only civil marriages concluded under the Marriage Act were legally recognised in South Africa.
Post 1994, the new Constitution enabled the recognition of different forms of marriages, including traditional and religious marriages.
But these rights haven’t been translated into law for all marriages. To date, apart from civil marriages, only customary marriages and same-sex unions are legally recognised. Laws have not been passed to recognise religious marriages as legally valid.
There was some hope that progress had been made in 2010 when the Muslim Marriages Bill was approved by Cabinet. But it’s never been passed into law.
Two years ago the state’s failure to legally recognise Muslim marriages was challenged in the Western Cape High Court.
The Court held that by not having legislation that recognises and regulates the marriages, the state violated several constitutional rights. These included the rights of Muslim women to equality, dignity and freedom of religion.
The Court found that the state abdicated its constitutional obligations to “respect, protect, promote and fulfil the rights in the Bill of Rights”, and to perform its constitutional obligations “diligently and without delay”.
The Court ordered the state to prepare, initiate, enact and bring into operation legislation to recognise and regulate Muslim marriages by 31 August 2020. But, the judgment is being appealed in the Constitutional Court. The deadline imposed by the High Court is thus suspended pending the outcome of the appeal.
The arguments raised in the judgment are arguably also relevant to other minority religious marriages, including Hindu and Jewish marriages.
The failure of the state to recognise religious marriages is a major omission in a country that boasts a constitution that promotes diversity. In particular, the failure to have laws recognising – and regulating – religious marriages leaves women, in particular, vulnerable.
The missing marriages
Nonrecognition of religious marriages undermines the dignity of spouses. For instance, those who do not also have a civil marriage continue to be regarded as unmarried. When they die, their death certificates reflect that they were never married. This confirms that their spousal relationship had no legal significance.
Secondly, by not affording legal recognition to religious marriages, the right of spouses in those marriages to equal treatment and protection of the law is undermined.
Thirdly, women in religious marriages are unfairly discriminated against on the basis of gender and sex. For example, women in Muslim, Hindu and Jewish marriages have difficulty exiting religious marriages. Legal recognition – and regulation – of their marriages could assist them in doing so.
Hindu and Jewish spouses tend to enter into civil marriages in addition to their religious marriages. But most Muslims don’t. That’s mainly because civil marriages do not allow polygny and are, by default, in community of property. These are deemed by many Muslims to be unIslamic.
But even spouses who enter into civil marriages need their religious marriage to be legally recognised. This is so that features specific to the religious marriage, such as religious divorce, can be recognised, regulated and enforced by law.
There are two parallel law reform processes underway to consider amendments to the country’s marriage laws. One is managed by the South African Law Reform Commission, and the other by the Department of Home Affairs. Both appear to want to draft overarching legislation to afford recognition to all forms of marriages.
Home Affairs has not yet produced written documentation for consideration. The Commission has published a paper, in which it proposes the drafting of a single marriage statute.
It’s not clear why there are two parallel processes to achieve the same result.
The Commission indicates that a single marriage statute could take the form of a single (unified) marriage act or an omnibus (umbrella) legislation.
A single marriage act “would comprise a unified set of requirements (and possibly consequences) for all marriages”.
An omnibus legislation “would contain different chapters” for the recognition of different kinds of marriages such as civil marriages, civil unions, customary marriages and religious marriages.
A single marriage act and omnibus legislation could afford recognition to all types of marriages, including civil, religious and customary marriages, and same-sex unions. While a single marriage act would achieve this by pursuing a one-size-fits-all approach, an omnibus legislation would incorporate several chapters, each purporting to recognise a different type of marriage.
The inclination to want to afford legal recognition to all types of marriages is welcome. But the devil will be in the detail.
Recognition of all marriages will promote formal equality by ensuring that all marriages are legally recognised and treated as legally valid. But, if a single marriage act or omnibus legislation affords only legal recognition to religious marriages, the regulation of the marriages will still be left to religious communities.
This leaves the door open for gendered discriminatory religious rules and practices to be maintained. For example, polygyny in Muslim marriages could continue to be practised in a manner that discriminates against women. Husbands could still get away with not treating their polygynous wives equally.
It is, therefore, not good enough for the state to only recognise different forms of marriages. It needs to also regulate them. By regulating features that are specific to a religious marriage, such as polygyny and divorce, substantive equality can be promoted. Each type of marriage, the way in which it is practised within communities, and the consequences for especially marginalised members of those communities such as women, must be considered.
If the state is serious about affording sufficient protection to marginalised people in society – including women in minority religious communities – it should go beyond simply recognising all forms of marriages. It must also regulate them – in a nuanced way.
The state could do so by enacting separate legislation to recognise and regulate a particular type of marriage, such as the Muslim Marriages Bill. It could also enact an omnibus legislation that contains different chapters, which recognise and regulate the specific features of different types of marriages. For instance, the Muslim Marriages Bill could be incorporated into the omnibus legislation as a chapter. And existing legislation, such as the Recognition of Customary Marriages Act, Civil Union Act and Marriage Act, could be amended where necessary and included as separate chapters.
What needs to happen next
The state must consult all relevant stakeholders, including religious law and gender experts; members of affected communities, including women; and broader civil society. This is the only way that marriage laws in the country can be appropriately responsive to the lived realities of all, especially women.
The consultation processes could reveal that some marriages require more or less regulation than others. The outcome of the consultation processes must then be incorporated into legislation.