The Recognition of Religious and Customary Marriages and Non-Marital Domestic Partnerships in South Africa

Authored by: Waheeda Amien

Routledge Handbook of Family Law and Policy

Print publication date:  July  2020
Online publication date:  July  2020

Print ISBN: 9780367195526
eBook ISBN: 9781003058519
Adobe ISBN:

10.4324/9781003058519-4

 

Abstract

The question regarding what forms of marriage should be recognized for legal purposes is a significant one in a world of increasing cultural and religious diversity. For some countries, this is a relatively recent phenomenon. Other countries have long been made up of a variety of religious and cultural populations and have approached the issue in different ways. This chapter addresses the developments and challenges relating to the recognition of customary and religious marriages, and domestic partnerships in South Africa. South Africa provides a good example of development of policies in this area because, like most countries that were colonized by Britain and Europe, it inherited a colonial legacy that was heavily influenced by a Christian understanding of marriage, which is characterized mainly by monogamy and heterosexuality. The colonial Christian underpinnings for marriage were eventually adopted by the South African apartheid state, where marriage was defined as ‘the union of one man and one woman to the exclusion while it lasts of all others’. 1 However, since the advent of democracy in South Africa in 1994, family law policy had to recognize the vast religious and ethnic diversity of the country. This chapter considers how this has been done.

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The Recognition of Religious and Customary Marriages and Non-Marital Domestic Partnerships in South Africa

Introduction

The question regarding what forms of marriage should be recognized for legal purposes is a significant one in a world of increasing cultural and religious diversity. For some countries, this is a relatively recent phenomenon. Other countries have long been made up of a variety of religious and cultural populations and have approached the issue in different ways. This chapter addresses the developments and challenges relating to the recognition of customary and religious marriages, and domestic partnerships in South Africa. South Africa provides a good example of development of policies in this area because, like most countries that were colonized by Britain and Europe, it inherited a colonial legacy that was heavily influenced by a Christian understanding of marriage, which is characterized mainly by monogamy and heterosexuality. The colonial Christian underpinnings for marriage were eventually adopted by the South African apartheid state, where marriage was defined as ‘the union of one man and one woman to the exclusion while it lasts of all others’. 1 However, since the advent of democracy in South Africa in 1994, family law policy had to recognize the vast religious and ethnic diversity of the country. This chapter considers how this has been done.

The Christian understanding of marriage was incorporated into the institution of civil marriage, which is regulated by the Marriage Act 25 of 1961. 2 To enjoy the patrimonial benefits of a civil marriage, including reciprocal spousal maintenance obligations, equal parental rights and responsibilities regarding minor children born of a marriage, and each spouse being compensated for contributions to the other’s estate, heterosexual and monogamous unions must be registered under the Marriage Act. Therefore, unmarried heterosexual cohabitants in domestic partnerships who live together ‘monogamously’ are outside the ambit of the Marriage Act. The heterosexual and monogamous understanding of marriage also excludes potentially polygynous and same-sex marriages from being treated as lawful marriages. Under the colonial and apartheid eras, potentially polygynous marriages were specifically denied recognition as lawful marriages on the basis that they were contrary to public policy. 3 This meant that potentially polygynous marriages, including customary marriages and religious marriages such as Muslim, Hindu and Jewish marriages, were not afforded full legal recognition.

Due to racial divisions imposed by the apartheid government, customary marriages were only recognized in certain parts of the former Natal province (now called KwaZulu-Natal) 4 and the former ‘independent’ homeland of Transkei (which now forms part of the Eastern Cape). 5 Muslim, Hindu and Jewish marriages also received partial recognition in limited circumstances, but usually in a way that did not benefit spouses of those marriages. For example, the apartheidera Insolvency Act 24 of 1936 included spouses in religious marriages in its definition of spouse. 6 That meant that if a spouse in a religious marriage was sequestrated, her spouse was divested of her estate, which along with the sequestrated spouse’s estate, vested in the Master of the High Court and thereafter the trustee of the estate. 7

In stark contrast to the pre-1994 period, post-1994 South Africa is characterized by a constitutional democracy that heralds an undertaking for all South Africans to reject the monolithic and racist approach of the colonial and apartheid orders, and to replace it with one that is tolerant of plurality. The uniqueness of the 1996 South African Constitution lies in the fact that it not only incorporates western liberal understandings of human rights such as non-discrimination, it also recognizes that a diversity of laws operates within the country that are equally deserving of recognition, including customary and religious laws. For instance, section 15(3)(a) of the Constitution, which forms part of the freedom of religion clause, permits government to enact legislation that recognizes religious and traditional personal or family law systems, or religious and traditional marriages. Section 31(1) further enables persons belonging to, among others, religious and cultural communities to establish, become members of and maintain religious and cultural associations and to enjoy their culture and practice their religion in association with other members of their cultural and religious communities. Yet, the Constitution also attempts to balance respect for diversity with protection of individual human rights. So, section 31(2) of the Constitution requires the associational right entrenched in section 31(1) to be exercised in a manner that is not inconsistent with other provisions of the Constitution, including gender equality. Similarly, section 15(3)(b) requires that legislation recognizing religious and traditional personal or family law systems, or religious and traditional marriages must be consistent with other provisions of the Constitution such as gender equality. The latter is protected in section 9(3) of the Constitution, which prohibits unfair discrimination on the basis of inter alia, sex and gender.

In light of the aforementioned constitutional provisions, South Africa has taken, and continues to take, steps to recognize the diversity of unions that exist within the country. Two key examples of personal relationships that are otherwise excluded from recognition under the Marriage Act, but have been afforded recognition under parallel legislation, are same-sex unions and customary marriages.

In common with many western jurisdictions (see Chapters 1.2 and 1.4 of this book), South Africa legislated to allow monogamous same-sex couples to register civil unions through the Civil Union Act 17 of 2006. Monogamous heterosexual couples may also register a civil union under the Civil Union Act if they do not wish to be married under the Marriage Act. Civil unions for same-sex and heterosexual partners are regulated in the same way as civil marriages for opposite-sex spouses and bear the same consequences. Still, for legal purposes, the two unions (civil unions and civil marriages) are treated as distinct. The main challenge presented by intimate heterosexual partnerships relates to the definition of marriage and the extent to which the definition is capable of including unions that do not involve the type of public ceremony that is commonly associated with marriage. Therefore, heterosexual spouses who choose to register a civil union under the CUA may not simultaneously register a civil marriage under the Marriage Act. 8

South Africa also legislated to recognize customary marriages through the Recognition of Customary Marriages Act 120 of 1998 (RCMA). The regulation of customary marriages presents a policy challenge for a particularly western understanding of family law, given their distinct features that are not common to the western concept of marriage. For example, customary relationships are often polygynous. Similar policy challenges are presented for the recognition of religious marriages that are potentially polygynous such as Muslim marriages. Recognition of some features of customary and religious marriages therefore presents a challenge to individual human rights such as gender equality, which South Africa is committed to protect and promote.

To address the policy challenges associated with the recognition of a variety of marriages, this chapter provides a brief exposition of the RCMA, followed by a consideration of the limited legal options that exist for spouses in religious marriages and domestic partners. While there appear to be moves afoot to afford full legal recognition to religious marriages and possibly also domestic partnerships, legislation has not yet been enacted to achieve such recognition. The legal interventions to address the non-recognition of religious marriages and domestic partnerships that have been proposed since 1994 are therefore also reflected upon, namely, the Muslim Marriages Bill, the Recognition of Religious Marriages Bill, the Domestic Partnerships Bill and the more recently proposed Single Marriage Statute.

Recognition of customary marriages

Given the lack of respect that was accorded to customary marriages by the colonial and apart-heid dispensations, it was a welcome intervention when the RCMA was passed in 1998. The RCMA provides full legal recognition to customary marriages and places them on an equal footing vis-à-vis civil marriages. This does not mean that customary marriages are regarded as civil marriages. In the same way that civil unions under the CUA are treated as distinct from civil marriages under the Marriage Act, customary marriages are distinguished from civil marriages and civil unions, and spouses may not simultaneously enter into a civil marriage or civil union while having registered a customary marriage. 9

At the same time, the way in which customary marriages are regulated is surprisingly similar to the way in which civil marriages are regulated. The RCMA reflects an attempt to assimilate customary marriages into the civil form of marriage. 10 Except for the recognition of a few features particular to customary marriages – namely, lobolo (transfer of property by the husband or head of his family to the head of the wife’s family) and polygyny, 11 and the fact that the RCMA defines a customary marriage as one that is ‘concluded in accordance with customary law’ 12 – every aspect of the RCMA mimics the requirements of the Marriage Act for the conclusion of a civil marriage. This might suggest that the constitutional respect for diversity of marriages has not translated into full respect for diversity within marriages.

Of significance is the fact that features of a civil marriage that are alien to customary marriages are incorporated into the RCMA. For instance, although customary marriages are traditionally entered into over an extended period of time, the RCMA requires that they be entered into immediately. 13 Another example relates to the notion of a matrimonial property regime, which is foreign to customary law. Under traditional customary law, property was managed for the benefit of the family. Yet, through section 7(2), the RCMA introduced community of property as the default regime for monogamous customary marriages entered into after the commencement of the RCMA. The community of property matrimonial property system is the default regime that applies to civil marriages in the absence of an ante-nuptial contract. 14 Furthermore, section 8(2) of the RCMA regulates customary divorces in the same way as civil divorces, even though traditional customary law expects separation between spouses to be negotiated between their families. 15 So, the RCMA effectively converts the nature of customary marriages signifying a connection between families 16 into one that focuses on individual spouses, which is typical of a western-type marriage. 17

The legislature’s intention to draw parity between civil and customary marriages may have been to ensure equality between spouses within customary marriages. In fact, certain provisions of the RCMA were raised for adjudication and the courts attempted to infuse equality into the interpretation of those provisions. For instance, in Gumede (born Shange) v President of the Republic of South Africa and Others, 18 the Constitutional Court confirmed that section 7(1) of the RCMA was unconstitutional because it unfairly discriminated against spouses in monogamous customary marriages entered into prior to the enactment of the RCMA on the basis of among others, gender. 19 Unlike section 7(2), which, as mentioned previously, creates a community of property regime for monogamous customary marriages entered into after the commencement of the RCMA, section 7(1) required customary marriages entered into before the commencement of the RMCA to continue being governed by customary law. As a result of the Gumede judgment, the matrimonial property regimes of monogamous customary unions entered into before and after the commencement of the RCMA are now in community of property.

Following Gumede, the constitutional validity of section 7(1) was again challenged in the case of Ramuhovhi and Others v President of the Republic of South Africa and Others, 20 but this time in the context of polygynous customary marriages entered into before the commencement of the RCMA. In Ramuhovhi, Venda customary law was at issue, in terms of which no rights of ownership or control over marital property vests in wives. 21 The Constitutional Court confirmed that section 7(1) of the RCMA unfairly discriminated on the basis of among others, gender and marital status in as far as it precluded wives in polygynous customary marriages entered into prior to the commencement of the RCMA from owning and controlling marital property visà-vis wives in monogamous customary marriages and wives in polygynous customary marriages entered into after the commencement of the RCMA. In respect of the latter, section 7(6) of the RCMA requires a husband in a customary marriage who wishes to enter into a polygynous customary marriage to apply to court for the approval of a written contract governing the matrimonial property system of his subsequent marriage. The Court interpreted section 7(6) as providing wives in polygynous customary marriages entered into after the commencement of the RCMA equal capacity to acquire and dispose of assets. 22 This interpretation is reinforced by section 6 of the RCMA, which confers equal status and capacity on spouses in customary marriages to among others, acquire and dispose of assets. 23

In response to the Ramuhovhi judgment, a Recognition of Customary Marriages Amendment Bill was drafted, which incorporates the Constitutional Court’s findings in the Gumede and Ramuhovhi judgments regarding the matrimonial property regimes of monogamous and polygynous customary marriages. 24 Clause 2(2) of the bill proposes that the default regime of all monogamous customary marriages should be in community of property. Clause 2(1) of the bill recommends a more complex regime for polygynous customary marriages entered into before the commencement of the RCMA in what appears to be an attempt by the legislature to balance customary law imperatives and equality. The bill proposes that spouses in polygynous customary marriages should have joint and equal ownership, management and control over marital property, which includes house property and family property. House property accrues to a particular family unit comprising the husband and a particular wife. Family property accrues to all the houses of the husband and his wives. The husband and wives are required to exercise their rights in the family property in the best interests of all the houses of the husband’s customary marriages whereas rights relating to house property must be exercised in the best interests of a particular family unit. In contrast, the bill exempts personal property belonging to the husband and each wife from joint ownership so that each spouse retains exclusive rights over their personal property. The bill further proposes that each category of property will derive their meaning from customary law. What constitutes family property, house property and personal property will depend on the meaning that a particular ethnic group ascribes to each type of property.

The Constitutional Court further interpreted aspects of customary law on which the RCMA is silent. For instance, in Mayelane v Ngwenyama and Another, 25 the Constitutional Court developed Xitsonga customary law to require the consent of the first wife should her husband wish to enter into a valid polygynous customary marriage with another woman. 26 In Mabena v Letsoalo, 27 the Transvaal Provincial Division (as it then was) held that the mother of the bride could participate in the lobolo negotiations and consent to the lobolo agreement. The finding of the Court in the Mabena case gave effect to living customary law and developed customary law in accordance with the ‘spirit, purport and objects’ of the Bill of Rights. 28 Therefore, the validity of a customary marriage is no longer dependent on only the male guardian of the bride providing his consent to the lobolo agreement.

To some extent, the RCMA along with judicial interpretation of aspects of customary law succeeded in achieving at least formal equality between customary law spouses. For instance, wives in customary marriages have equal rights to divorce and are assured of equal division of property upon termination of the marriage. In other respects, failure to consider the lived realities of indigenous African communities causes certain safeguards that are incorporated into the RCMA to prove unworkable. For example, the RCMA requires a husband to obtain court approval for polygynous marriages and that existing wives be joined in the application, presumably to afford them an opportunity to provide their opinion on the proposed subsequent marriage. 29 Not only is seeking court intervention for the purpose of concluding polygynous marriages unknown to traditional customary law, it requires wives in rural areas to travel great distances to attend court. Given that the rural parts of South Africa comprise the most poverty-ridden areas in the country, wives in those areas are unable to afford the costs involved in travelling to court and legal costs that might be incurred in joining the application. 30 Consequently, many polygynous marriages are entered into without court intervention despite the RCMA requirement that they must. 31

Limited recognition of religious marriages and domestic partnerships

Under the Marriage Act, parties married by Muslim, Hindu and Jewish rites are able to access benefits of secular legislation if they enter into civil marriages. Spouses in religious marriages are also able to benefit from specific pieces of legislation that were enacted under apartheid but amended post-1994, some as a result of judicial intervention and others without judicial intervention. Other pieces of legislation were newly enacted to afford protection in specific circumstances to spouses in religious marriages and/or cohabitants in domestic partnerships. The aforementioned options are discussed next.

Options for civil marriage available to religious communities

Section 3 of the Marriage Act enables a person who solemnizes ‘marriages according to Christian, Jewish or Mohammedan rites or the rites of any Indian religion’ to be designated as a marriage officer. Muslims, Hindus and Jews can therefore either enter into a separate civil marriage before or after concluding their religious marriage, or have their religious marriage solemnized by a person who is designated as a marriage officer under the Marriage Act. When the marriage officer performs the designated religious marriage, he could simultaneously register the marriage as a civil marriage. In this way, spouses entering into the designated religious marriage can access the patrimonial benefits attached to civil marriages. 32 As spouses in a civil marriage, they are also able to enjoy all the benefits accruing to civil law spouses that emanate from secular legislation. While section 3 includes the major faith religions in South Africa, it potentially excludes other faiths. The section could therefore be constitutionally challenged by other faith adherents on the basis that it unfairly discriminates on the ground of religion. 33

Anecdotal evidence suggests that most South African Jewish and Hindu couples enter into civil marriages while many South African Muslims do not. It appears that many Jewish rabbis and Hindu pandits who officiate religious marriages within their communities are marriage officers authorized to perform civil marriages. Until 2014 hardly any Muslim imāms who officiate Muslim marriages were registered as marriage officers under the Marriage Act. In 2014 the Department of Home Affairs initiated an ‘Imām Project’ where they succeeded in getting more than 100 imāms across South Africa to be registered as marriage officers. 34 However, very few of those imāms actually perform civil marriages today. Of those who do, they usually require a Muslim couple to enter into an ante-nuptial contract that precludes community of property on the basis that traditional Islamic law requires the estates of married persons to be kept separate. In the South African context, this places many Muslim wives in a financially disadvantaged position, especially when the marriage terminates through death or divorce because the wives are left financially destitute.

For those spouses who enter into religious and civil marriages and can therefore access benefits that secular legislation makes available to lawful spouses, the civil marriage still does not assist them in being able to enforce all the features of their religious marriage. For instance, a Muslim wife who wishes to obtain a Muslim divorce but is unable to acquire one from her husband or the ‘ulamā (Muslim clergy) and a Jewish wife who wants to obtain a Jewish divorce from her husband but is unable to obtain his consent, are not able to seek relief in a secular court. While they might be able to obtain dissolution of their civil marriage, failure to obtain a religious divorce has a disparate effect on women who wish to exit their religious marriage. They are placed in the position of not being able to move on with their lives and enter into a religious marriage with someone else even though their husbands may be able to do so, due to the potentially polygynous nature of their marriages.

To a limited extent, section 5A of the Divorce Act 70 of 1979 attempts to provide an incentive for parties to obtain a religious divorce before obtaining a civil divorce. 35 If a spouse applies for a divorce order to dissolve her or his civil marriage and the other spouse is preventing a religious divorce, the court has discretion to, among others, not grant the civil divorce until the religious divorce is granted. As mentioned previously, a wife in a religious marriage such as a Muslim and Jewish marriage needs a religious divorce to marry someone else by religious rites whereas her husband may not be similarly constrained. So, while an application of section 5A could work in the wife’s favour if the party applying for the divorce is the husband, it is of no assistance to the wife if she seeks a civil and religious divorce because the court cannot compel the recalcitrant husband to grant her a religious divorce.

Limited recognition of spouses in religious marriages and cohabitants in domestic partnerships through legislation

Some apartheid-era legislation was amended during South Africa’s democratic order to enable spouses in religious marriages and cohabitants in domestic partnerships to benefit from legislation that they were previously excluded from. For example, an amendment to the Income Tax Act 58 of 1962 recognizes the aforementioned parties as spouses for the purpose of being exempt from paying tax for donations made by one spouse or unmarried cohabitant to the other. 36

Other legislation that extends protection to spouses in religious marriages and/or unmarried cohabitants was newly introduced after 1994 such as the Compensation for Occupational Injuries and Diseases Act 130 of 1993, Demobilisation Act 99 of 1996, Special Pensions Act 69 of 1996, Domestic Violence Act 116 of 1998 and Children’s Act 38 of 2005.

Limited recognition of religious marriages through case law

There are also apartheid era laws that were amended after 1994 as a result of case law to include spouses of religious marriages that were not formalized under the Marriage Act, within the ambit of the legislation. This followed the groundbreaking approach adopted in the case of Ryland v Edros. 37 Ryland was the first case in the post-apartheid constitutional dispensation to afford relief to a Muslim wife who instituted claims based on her Muslim marriage. The Cape Provincial Division (as it then was) accepted the Muslim marriage as a contract and was willing to enforce proven terms and customs arising from that contract. 38 The Court justified its decision on the basis that public policy in South Africa is informed by the constitutional values of equality and tolerance of diversity. 39 Thus, the Court upheld the Muslim wife’s claims for nafaqah (maintenance) until the end of her iddah (waiting period following divorce) and her claim for mut’ah (Islamic law compensation permitted to her when the husband unjustifiably terminates the marriage). 40

The Ryland case laid the basis for later courts to recognize rights and obligations arising from Muslim and Hindu marriages within the ambit of specific legislation. For instance, in the case of Amod v Multilateral Motor Vehicle Accidents Fund, 41 the Supreme Court of Appeal found that a Muslim husband’s unilateral duty of spousal support arising from the Muslim marriage is worthy of legal recognition for the purpose of the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989 (now the Road Accident Fund Act 56 of 1996). 42 The Act incorporates the common law dependant’s action, which enables a surviving spouse to be compensated for loss of support in circumstances where the deceased had a legal duty of support and was unlawfully killed in a motor vehicle accident as a result of the negligent driving of a third party. 43 One of the overriding considerations that informed the Court’s decision was its finding that the boni mores of South African society encapsulates the constitutional values of ‘tolerance, pluralism and religious freedom’. 44 Thus, the Court extended the ambit of the act to include surviving spouses in monogamous Muslim marriages.

Thereafter, in the cases of Daniels v Campbell, 45 Hassam v Jacobs 46 and Govender v Ragavayah, 47 the South African judiciary recognized monogamous and polygynous Muslim spouses as well as monogamous Hindu spouses as ‘surviving spouses’ for the purpose of the Intestate Succession Act 81 of 1987, and a monogamous Muslim spouse as a ‘spouse’ for the purpose of the Maintenance of Surviving Spouses Act 27 of 1990.

More recently, in the case of Moosa NO and Others v Minister of Justice and Correctional Services and Others, 48 the Constitutional Court further recognized a spouse in a Muslim marriage as a ‘surviving spouse’ for the purpose of section 2C(1) of the Wills Act 7 of 1953. In terms of section 2C(1), if a deceased person leaves a will and makes testamentary provision for a descendant and the surviving spouse of the deceased to benefit from the deceased’s estate but the descendant renounces her right to receive the benefit, the benefit then vests in the surviving spouse. To the extent that the impugned provision excluded spouses in a Muslim marriage from being recognized as a ‘surviving spouse’, the Constitutional Court confirmed the court a quo’s 49 order of constitutional invalidity on the basis that section 2C(1) violated the constitutional rights of Muslim spouses to equality and dignity. 50 To remedy the constitutional defect, the Constitutional Court read into section 2C(1) words that enable a spouse in a monogamous and polygynous Muslim marriage to be included in the definition of ‘surviving spouse’ for the purpose of section 2C(1). 51

The judiciary further recognized Muslim and Hindu husbands’ duties of spousal support arising respectively from their monogamous Muslim and Hindu marriages for the purpose of maintenance claims and specifically in the context of the Maintenance Act 99 of 1998. In Cassim v Cassim 52 and Laxmi Prag v Daya Prag, 53 the Transvaal Provincial Division (as it then was) and the Wynberg Magistrate’s Court respectively granted the Muslim wife’s claim and the Hindu wife’s claim for spousal maintenance under the Maintenance Act. Furthermore, the Court in Khan v Khan 54 extended the application of the Maintenance Act to Muslim wives in polygynous marriages by bringing them too within the ambit of the Maintenance Act.

In fact, Muslim wives who institute matrimonial actions against their husbands may also be awarded maintenance pendente lite in terms of Rule 43 of the Uniform Rules of Court. The latter enables a spouse to claim inter alia, interim maintenance pending the finalization of a matrimonial action. In the cases of AM v RM 55 and Hoosain v Dangor, 56 the Muslim wives in the respective cases instituted divorce actions against their husbands. In the two cases, the wives respectively asked the Eastern Cape and Western Cape High Courts to apply the provisions of the Divorce Act 70 of 1979 to the dissolution of their Muslim marriages and that the Courts declare their Muslim marriages valid under the Marriage Act. In each case, the Court granted the wives’ requests for maintenance pendente lite. 57

The parties in the preceding cases reached out-of-court settlements. So, the courts were not afforded an opportunity to pronounce on the merits of the wives’ claims for an order declaring the validity of their Muslim marriages and that their divorces be governed by the Divorce Act. Had the cases been pursued to their natural conclusion, it is most likely that the judiciary may neither have found the Muslim marriages to be valid under the Marriage Act nor that the Divorce Act applies to the dissolution of Muslim marriages. The main reason for this assertion is that the judiciary has up to now been reluctant to provide general recognition to Muslim marriages. In the Amod case, the Supreme Court of Appeal clearly indicated that it views such recognition to be best addressed by the legislature. 58

It seems that the judiciary is more likely to grant claims arising from religious marriages if the bases of the claims are compatible with secular law. For instance, the Court in Ryland applied the principles of South African contract law because it was satisfied that a Muslim marriage could be treated as a contract. 59 Similarly, the husband’s duty of support arising from a Muslim or Hindu marriage could easily be accommodated in secular legislation. However, expecting a secular court to apply the provisions of the Marriage and Divorce Acts to religious marriages and divorces may not be tenable, especially when the rules of secular legislation may be incompatible with religious rules. For instance, many Muslims treat the notion of community of property as incompatible with Islamic law. If a Muslim marriage is regarded as valid under the Marriage Act, this might entail a conversion of the matrimonial property system of Muslim marriages from one that traditionally treats the estates of spouses as separate to one that is in community of property. It is therefore important that the process of affording legal recognition to religious marriages entails consultations with religious communities. The judiciary’s recommendation that full legal recognition of religious marriages should be the responsibility of the legislature is most likely a wise one since the legislature is best placed to conduct the necessary consultations with the relevant stakeholders within those communities.

Given the protracted delay on the part of the South African state to enact legislation to recognize Muslim marriages, an application was brought in the case of Women’s Legal Centre Trust v President of South Africa and Others, Faro v Bingham N.O. and Others, Esau v Esau and Others 60 to compel the state to enact legislation to recognize and regulate Muslim marriages. The application resulted in a groundbreaking judgment delivered by a full bench of the Western Cape High Court in 2018. The Court found that continued non-recognition of Muslim marriages violates several constitutional rights, including equality, access to justice, the best interests of the child, and freedom of religion and dignity. 61 The Court further found that failure by the state to provide legislative recognition for Muslim marriages, which resulted in a violation of the aforementioned rights, constitutes an abdication of its section 7(2) and section 237 constitutional obligations. 62 Section 7(2) obliges the state to ‘respect, protect, promote and fulfil the rights in the Bill of Rights’. Section 237 requires ‘[a]ll constitutional obligations [to] be performed diligently and without delay’. The Court thus ordered the state to enact legislation within 24 months of the date of judgment to recognize and regulate the consequences of Muslim marriages. 63

Until legislation is enacted, Muslim marriages remain without legal recognition and parties to those marriages are left without legal protection. The same goes for all other religious marriages. So, whenever spouses in religious marriages seek recognition, they need to convince a court to include them within the ambit of a specific piece of legislation. For instance, the Gov-ender case only extended the sphere of the Intestate Succession Act to spouses in monogamous Hindu marriages. Spouses in polygynous Hindu marriages still need to institute a separate claim to be afforded protection under the Intestate Succession Act. This involves a cumbersome and costly process. Furthermore, if parties wish to assert claims that arise from the Muslim marriage contract such as mahr, they need to institute a specific claim for that. This too can prove costly and time-consuming and would most likely require legal representation.

General non-recognition of religious marriages also means that spouses in a religious marriage cannot rely on a secular court to amend religious rules that are harmful to them. This is particularly due to the judiciary’s reluctance to become involved with issues relating to religious doctrine. 64 For example, in the case of Singh v Ramparsad, 65 the Durban High Court refused to recognize a civil divorce in favour of the wife in circumstances where the parties had not registered a civil marriage under the Marriage Act, and had only entered into a Hindu marriage according to the Sanathan or Vedic tradition, which does not permit religious divorce. The Court was not prepared to meddle in theological issues and grant a divorce in circumstances where the religion regulating the parties’ marriage did not recognize divorce. 66

For the aforementioned reasons, full legal recognition of religious marriages is important. Attempts were made over the past two decades to afford recognition to a specific type of religious marriage, all religious marriages, domestic partnerships and/or all forms of intimate unions. In about 2005, the Commission for Gender Equality and the Department of Justice and Constitutional Development drafted a Recognition of Religious Marriages Bill. 67 During 2010, a Muslim Marriages Bill was approved for parliamentary consideration by the South African Cabinet. 68 In 2008, the Department of Home Affairs published a Domestic Partnerships Bill for public comment. 69 More recently, the South African Law Reform Commission and the Department of Home Affairs are conducting parallel consultation processes, in which they seek input for the drafting of legislation to afford recognition to all forms of marriages. 70 Each of the aforementioned pieces of proposed legislation is discussed in greater detail in the following sections.

Recognition of Religious Marriages Bill

The Recognition of Religious Marriages Bill (RRMB) proposes full legal recognition for all religious marriages in South Africa. It recommends that religious communities should regulate their religious marriages but that dissolution of religious marriages should mimic the approach espoused in the Divorce Act. 71 So, the RRMB tries to accommodate the interests of religious communities by allowing them to manage their own marriages while assimilating the way in which those marriages are dissolved to enable conformity with civil divorces.

The approach reflected in the RRMB presents two main challenges. First, the RRMB leaves the regulation of religious marriages for determination by religious communities. It particularly does not seek to regulate practices that are potentially harmful to women, such as polygyny and denying women the right to exit unwanted religious marriages. Religious interpretations and practices adopted by religious communities that are harmful to women could therefore potentially persist. 72 Secondly, like the RCMA, the RRMB’s expectation that religious divorces should follow the same process as civil divorces is an attempt to ensure an equal right of divorce for women and men. 73 However, this assimilation approach is subject to the same limitation faced by the RCMA, namely, it fails to take sufficient cognizance of the lived experiences of members of religious communities where spouses feel compelled to obtain religious divorces. While the RRMB proposes the incorporation of a clause similar to section 5A of the Divorce Act, 74 the net effect will be the same as described in the previous section: if the uncooperative spouse is the husband and the wife is seeking a divorce, a court will not be able to compel the husband to grant her a religious divorce.

The RRMB did not undergo widespread consultations with religious communities and civil society. It also did not appear to elicit much support from those sectors and consequently appears to have been shelved.

Muslim Marriages Bill

In contrast, the Muslim Marriages Bill (MMB), which was drafted by the South African Law Reform Commission (SALRC) in 2003, 75 underwent extensive consultations with the South African Muslim community and human rights organizations and garnered general consensus among them for its enactment. The MMB recommends comprehensive regulation of the features of Muslim marriages and divorces, which includes inter alia, mahr, marriage by proxy, the husband’s unilateral duty of support toward his wife and children, polygyny, a wife’s claim for compensation within the marriage, mediation, arbitration and different forms of Muslim divorce.

Since non-recognition of Muslim marriages impacts particularly negatively on the more marginalized spouse within the marriage, namely, the wife, 76 gender activists advocate for the legal recognition and regulation of Muslim marriages through legislation such as the MMB. 77

As mentioned earlier in this chapter, apart from being unable to access all the civil law benefits that are available to their civil law counterparts, Muslim wives must endure the ‘ulamā’s interpretations of Muslim family law that do not always weigh in their favour. Regulation of Muslim marriages will thus enable Muslim women to have increased access to their Islamic law rights and benefits including divorce options that Islamic law makes available to them, such as those included in the MMB.

Currently, Muslim women are also unable to challenge decisions emanating from ‘ulamā bodies. Gender activists push for Muslim family law to be adjudicated in secular courts to increase the chances of gendered reform of Muslim family law. 78 If the features of a Muslim marriage are regulated by legislation, the judiciary will have a basis for engaging with the doctrines of Islamic law where necessary and particularly in those instances where the legislation is vague. This will put the current judicial doctrine of religious non-entanglement to the test. To prevent the judiciary from having to engage with religious doctrine, it is important that legislation provide as much certainty as possible.

In 2009, the Department of Justice and Constitutional Development (DoJCD) amended the MMB, which received Cabinet approval in the following year. The amendments were affected without consulting the relevant stakeholders including the ‘ulamā. Two amendments in particular appeared to be of concern to the ‘ulamā, which caused them to withdraw their support of the amended MMB. 79 First, the amended MMB enables any judge from within the secular court system to adjudicate disputes arising from the MMB, 80 whereas the 2003 MMB required a Muslim judge to preside with Islamic law specialists as assessors. 81 The ‘ulamā are of the view that any issue of an Islamic nature should be decided upon by a Muslim judge. Secondly, the 2003 MMB required a process of compulsory mediation to precede the finalization of the divorce. 82 This is consistent with the ‘ulamā’s view that mediation/arbitration of Muslim family law disputes is compulsory under Islamic law. In contrast, the amended MMB converts the compulsory feature of the mediation/arbitration process that was recommended in the 2003 MMB into a voluntary one. 83

Currently, arbitration is not permitted in South Africa for family matters. It is only permitted for commercial matters. 84 This approach is being revisited by the SALRC, which is considering draft legislation, namely, a Family Dispute Resolution Bill to regulate alternative dispute resolution in family matters. 85 The proposal involves a ‘mandatory mediation model’ and ‘voluntary family arbitration’. The SALRC recommends that ‘family disputes affecting the welfare of children’ should be dealt with by the Family Dispute Resolution Bill and any awards that are made ‘affecting the rights and interests of children’ must be confirmed by a High Court. 86 In contrast, the SALRC proposes ‘that family disputes not affecting the rights and interests of children’ should be regulated by the Arbitration Act 42 of 1965. 87 Although not entirely clear, it appears that the SALRC may intend for all disputes involving minor children to be subject to judicial oversight including financial awards made in favour of either parent that could potentially affect the rights and interests of the children. 88 Therefore, family arbitration awards that do not affect the rights and interests of children will most likely not be appealable; only the processes resulting in those awards will be capable of being reviewed.

Presently, the ‘ulamā conduct arbitration and mediation of family disputes within the South African Muslim community. In doing so, many invoke Islamic law interpretations and practices that militate against women. For example, many members of the ‘ulamā do not grant faskhs to wives even where clear Islamic law grounds exist. Instead, they often advise women to return to their marriages and attempt reconciliation, including in instances where husbands are abusive. Where faskhs are granted, it is usually on the occasion that husbands fail to appear at the faskh hearings. Should mediation and/or arbitration awards by ‘ulamā who adopt and apply gender-discriminatory Muslim family law rules and practices be made enforceable through the aforementioned proposed law reforms, the rights of Muslim women could be detrimentally affected, particularly in the absence of judicial oversight. In fact, even if their mediation and arbitration awards were made subject to appeal, the financial and emotional cost implications involved in the appeals process may discourage women from pursuing appeal claims. The aforementioned concerns are equally applicable to mediations and arbitrations that are conducted in other faith-based communities in South Africa, in which awards are informed by gender-discriminatory rules and practices.

Since the proposed family dispute resolution mechanisms would enable the ‘ulamā to maintain authority over the Muslim family law realm, it may be why notwithstanding the ‘ulamā’s concerns about the amended MMB, the United Ulama Council of South Africa (UUCSA), which represents the majority of ‘ulamā bodies in South Africa appears to have reversed its decision about the MMB and now expresses its support for the MMB. 89

Both the 2003 and amended versions of the MMB attempt to balance religious rights with the constitutional imperative to promote gender equality. This is why I have argued elsewhere that the MMB adopts an integration approach, as opposed to a strictly accommodation approach. 90 The MMB tries to do this by incorporating benefits that are traditionally afforded to women under Islamic law, even though they may not be practiced within the community. For example, it provides for a default out of community of property regime to ensure that the spouses’ estates are kept separate. To balance this, it includes a wife’s right to be compensated for her direct contributions during the marriage. I have also argued that the MMB does not go far enough to include the gender-friendliest interpretations of Islamic law, which is a component of the approach that I advocate for the drafting of legislation that deals with religious family laws, namely, a Gender-Nuanced Integration approach. 91 For instance, the MMB does not make provision for a wife to be compensated for her intangible contributions to the marriage. Nevertheless, in trying to achieve the balance between religious/customary rights and gender equality, the MMB seems to have been more successful than the RCMA and RRMB. Yet, regardless of the benefits that the MMB potentially offers to South African Muslims, especially Muslim women and the fact that the MMB is supported by most of the religious authorities within the South African Muslim community, it still has not been submitted for parliamentary consideration.

Domestic Partnerships Bill

Apart from draft legislation proposing the recognition of Muslim marriages, the legislature also took steps in 2008 to recommend legal recognition for domestic partnerships in South Africa. This resulted in the drafting of a Domestic Partnerships Bill, which is the next subject of discussion.

Although the issue of unmarried cohabitants is dealt with elsewhere in this book (see especially Chapters 1.2 and 1.5), it bears some consideration in this chapter since the South African context adds a dimension to the discussion that is not found in many westernized jurisdictions. That dimension relates to one of the more pernicious effects of colonialism and apartheid that resulted in the disintegration of the extended African family and its replacement with a nuclear type family. 92 The fragmentation of the extended African family emanated directly from the colonial and apartheid legacies of the migrant labour system and land dispossession. 93 In particular, the migrant labour system required black (indigenous) African men to migrate from rural areas to urban areas where they provided a cheap source of labour for white mine owners. 94 As mine workers, they were forced to live in the mine compounds without their families. This resulted in the formation of numerous domestic partnerships between indigenous African men and women in the urban areas while their wives remained in the rural areas and became responsible for the maintenance of the rural-based family. 95 These days, domestic partnerships are also entered into within other population groups, including the coloured, Indian and white communities, but still to a lesser extent than those found in indigenous African communities. 96

While the post-1994 judiciary is inclined to bring spouses in religious marriages within the ambit of specified legislation, it adopts a less generous stance toward unmarried cohabitants. The main reason appears to be the judiciary’s understanding that, unlike religious marriages, the words ‘marriage’, ‘spouse’ and ‘surviving spouse’ as they appear in legislation do not include domestic partnerships and unmarried cohabitants. 97

To address the preceding lacuna, the Department of Home Affairs drafted a Domestic Partnerships Bill (DPB) in 2008. The DPB makes provision for the legal recognition of registered domestic partnerships, 98 the legal status of domestic partners 99 and enforcement of the legal consequences of domestic partnerships. 100 The DPB adopts a ‘functional’ approach 101 to domestic partnerships by recommending that a ‘spouse’ for the purpose of inter alia, the Maintenance of Surviving Spouses Act, must be construed to include a registered domestic partner. 102 Along the same vein, the DPB recommends that registered domestic partners be brought within the definition of ‘spouse’ in the Intestate Succession Act. 103 The DPB further proposes that partners in a registered domestic partnership have a reciprocal duty of support. 104 Thus, it could further potentially bring registered domestic partners within the protection of the Maintenance Act.

At the same time, the DPB confirms that a domestic partnership is not equivalent to a marriage to the extent that it does not require registration of a domestic partnership to be witnessed. 105 Thus, domestic partnerships would not entail the public characteristic that typifies marriage. Termination of domestic partnerships is also distinguished from civil divorces in that the DPB recommends that the latter require court intervention while the former should simply involve registration of a termination agreement. 106 The only time that judicial oversight of a termination agreement is proposed is when minor children are involved. 107 The latter requirement is to ensure that the paramount principle of the best interests of the child is upheld, which is constitutionally required and legislatively protected in the Children’s Act. 108

To assist in the determination of property division, the DPB makes provision for the consideration of financial and non-financial contributions that are made directly or indirectly to the maintenance or growth of the partners’ joint property or each of their separate property. 109 It also recognizes non-financial contributions made by a homemaker or parent for the welfare of the other partner and/or child of the domestic partners. 110 In other words, the DPB specifically recommends giving legal recognition to the value of unpaid labour in the home in the context of a registered domestic partnership. The latter recommendation is made in view of the DPB’s proposal that the default matrimonial property regime for domestic partnerships should entail separate estates, unless the registered domestic partnership agreement stipulates otherwise. 111 Since secular legislation does not make specific provision for unpaid labour in the home to be valued in the context of civil marriages and civil unions, 112 a registered domestic partnership may potentially provide more protection for non-financial contributions in the home. In relation to registered domestic partners, this might raise the question of equal treatment for spouses in civil marriages or partners in civil unions who are married out of community of property but are not as easily able to be compensated for their direct and indirect contributions within marriage.

Finally, although the DPB mimics the civil law expectation of marriage that only one legal domestic partnership may be registered at a time, 113 it is simultaneously attentive to the customary law practice of polygyny among indigenous Africans. Where there may be competing claims for maintenance by an unregistered surviving domestic partner and a surviving customary spouse, the DPB recommends that the court make an order that it deems just and equitable in relation to all the parties. 114 It is unclear why the DPB does not make a similar recommendation in the context of Muslim spouses since polygyny is also practiced within the South African Muslim community. 115

In spite of the huge amounts of time, labour and taxpayers’ money that was expended to produce draft legislation for the legal recognition of domestic partnerships as well as religious marriages, none of the draft legislation discussed in the preceding sections were enacted. Instead, the South African state now appears to want to produce a consolidated piece of legislation that will afford recognition to all forms of marriages and domestic partnerships. Two parallel consultative processes are being engaged for the drafting of the consolidated legislation; one by the South African Law Reform Commission (SALRC) and another by the Department of Home Affairs (DHA). At this stage, it is unclear if the two processes are working in tandem with each other to produce one draft legislation or if two pieces of draft legislation will emanate from the parallel consultative processes.

In 2019 the SALRC published an Issue Paper, 116 which sought input from the public for the drafting of the aforementioned consolidated legislation. Shortly thereafter, the DHA published a concept paper, 117 which contains a programme for ministerial dialogues with relevant stakeholders for the drafting of a marriage policy preceding a new marriage statute. It seems that one of the objectives underpinning the drive to draft new marriage legislation is to ensure equality for all persons engaged in intimate forms of relationships. 118 Both the SALRC and the DHA are investigating the formulation of either a single marriage act or omnibus legislation. While the DHA has not provided any detailed information regarding the proposed consolidated legislation, the SALRC’s Issue Paper provides some discussion about the proposed legislation, which it calls the ‘Single Marriage Statute’. In the next section, the SALRC’s proposed single marriage statute is briefly considered. 119

Single marriage statute

As mentioned previously, the SALRC recommends that the single marriage statute should comprise either a single marriage act or an omnibus legislation. 120

A single marriage act would involve ‘a unified set of requirements (and possibly consequences)’ for all marriages while an omnibus legislation would comprise ‘different chapters which reflect the current diverse set of legal requirements for and consequences of civil marriages, civil unions, customary marriages, Muslim and possibly other religious marriages’. 121

By expecting one standard of requirements and consequences to apply to all types of marriages and partnerships, the first option, namely, a single marriage act, involves a form of assimilation of one kind of marriage or partnership into another. It is unclear which standards will be used as the baseline by which all marriages and partnerships will be expected to conform. Given the diverse nature, requirements and consequences of marriages within South Africa, a single set of requirements and consequences is not capable of regulating all the specific features of the different types of marriages and partnerships in the country. This is already evident in the existing Marriage Act, which as highlighted earlier in this chapter, contains specific Judeo-Christian expectations of marriage to which religious marriages such as Muslim marriages must conform for parties to access matrimonial-related benefits. This leaves certain features of religious marriages unregulated such as religious divorce. A single marriage act that requires all marriages and partnerships to comply with the same requirements and consequences will most likely have the same effect as the Marriage Act – that certain features will be left unregulated. Where those features militate against women, the latter will be left unprotected. For example, unless each type of religious divorce is recognized and regulated, women will continue to experience difficulty in accessing the types of religious divorces mentioned earlier in this chapter. So, even though a single marriage act appears to offer the potential for formal equality among married and unmarried intimate partners, it cannot enable substantive equality because it is not capable of responding to all the lived realities of people within South Africa.

Depending on which form the second option, namely, omnibus legislation, takes, it has the potential to recognize and regulate specific features of different types of marriages and partnerships. This will only be possible if the omnibus legislation contains different chapters, in which each chapter regulates the requirements, features and consequences of a specific type of marriage and partnership. Some types of marriages may require more or less regulation. This can only be determined in consultation with communities that are affected directly by the regulation of their marriages. Since the Muslim Marriages Bill (MMB) has already undergone extensive consultations with the South African Muslim community and gender activists, it may make sense to incorporate the MMB into the omnibus legislation as a chapter recognizing and regulating Muslim marriages.

The omnibus option also presents an opportunity for existing marriage legislation and draft legislation such as the Domestic Partnerships Bill to be revisited, amended where needed and incorporated into the omnibus legislation as separate chapters. Should the omnibus legislation take a similar form to that of the Recognition of Religious Marriages Bill (RRMB) where recognition is afforded to different marriages and partnerships without regulation of the specific features of those marriages, the same concerns raised earlier regarding the RRMB will be equally applicable to the omnibus legislation.

Conclusion

Great strides in relation to the recognition of religious marriages and domestic partnerships were made in the past 26 years since the advent of democracy in South Africa. Tremendous efforts were made on an ad-hoc legislative basis to include spouses in religious marriages and unmarried cohabitants in domestic partnerships within the ambit of specified legislation. Although the judiciary is disappointing in its treatment of domestic partnerships, it provided as much relief as possible to spouses in religious marriages who were adversely affected by the non-recognition of their marriages and will most likely continue to do so on an ad-hoc basis. This change in approach to religious marriages from the racist, exclusivist paradigm of the apartheid regime is a direct result of the injection of constitutional values into the public policy and boni mores of post-apartheid South Africa, which embraces freedom of religion, equality, human dignity, diversity, pluralities and inclusivity.

Despite the significant steps that were taken to enable spouses in religious marriages and unmarried cohabitants in domestic partnerships to reclaim their dignity as contributing members within family structures, a great deal more is still required. Limited recognition of religious marriages and domestic partnerships that is afforded in an ad-hoc manner and in specific circumstances has proven to be insufficient. Unlike spouses in religious marriages who can rely on the judiciary to provide relief to them in the absence of legislation affording full legal recognition to religious marriages, unmarried cohabitants in domestic partnerships may not be as fortunate. This might suggest that legislative intervention to afford full legal recognition to domestic partnerships may be more urgent than in respect of religious marriages.

Nevertheless, spouses in religious marriages and unmarried cohabitants will only be able to operate on equal terms with civil, same-sex and African customary law spouses when their unions too receive legal recognition. That is not to say that the solution is as simple as enacting legislation to simply afford recognition to religious marriages or to ensure uniformity among the different types of marriages. Such an approach may further disadvantage the more marginalized members of the community. Instead, legislation recognizing religious marriages must comprehensively address the full range of features that are characteristic of those unions and be cognizant of the needs of the community it aims to serve, particularly the more marginalized members of the community, including women.

Seedat’s Executors v The Master (Natal) 1917 A.D. 302 at 309. Kader v Kader 1972 (3) SA 203 (R., A.D.) at 206H. Ismail v Ismail 1983 (1) SA 1006 (AD) at 1019H.

As former British colonies, India and Canada similarly enacted legislation, which reflect the Christian ethos of monogamy and heterosexuality. For example, see the Indian Special Marriage Act 43 of 1954. In Canada, provincial laws govern civil marriages. For instance, the Ontario Marriage Act R.S.O. 1990, c. M.3 governs civil marriages in Ontario.

Ismail op. cit., n 1, 1024D-F.

KwaZulu Act on the Code of Zulu Law 16 of 1985.

Transkei Marriage Act 21 of 1978.

Section 21(13).

Section 21(1).

Civil Union Act 17 of 2006, section 8(2).

RCMA, section 3(2); Civil Union Act 17 of 2006, section 8(2).

C. Himonga, ‘The Advancement of African Women’s Rights in the First Decade of Democracy in South Africa: The Reform of the Customary Law of Marriage and Succession’, Acta Juridica 85, 2005, 82–107.

Section 1.

Section 1. The RCMA defines ‘customary law’ as ‘the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples’.

E. Curran and E. Bonthuys, ‘Customary Law and Domestic Violence in Rural South African Communities’, South African Journal of Human Rights 21, 2005, 607–35, 615.

Community of property involves a joint estate that comprises assets and liabilities of both spouses, which they each acquire before entering marriage and during the marriage. Each spouse has a 50 percent share in the joint estate. Matrimonial Property Act, Chapter III.

Himonga, op. cit., n 10, 89.

Gumede (born Shange) v President of the Republic of South Africa and Others 2009 (3) SA 152 (CC) at para 18; Curran and Bonthuys, op. cit., n 13.

W. Amien, ‘Reflections on the Recognition of African Customary Marriages in South Africa: Seeking Insights for the Recognition of Muslim Marriages’, in A. Claassens and D. Smythe (eds), Marriage, Land and Custom, Cape Town: Juta & Co Ltd, 2014, Ch. 17.

2009 (3) SA 152 (CC).

Paras 58–9.

2018 (2) SA 1 (CC).

Paras 1, 9.

Para 35.

Ibid.

Available at www.justice.gov.za/legislation/bills/2019-RCMA-Bill.pdf (accessed 9 December 2019).

2013 (4) SA 415 (CC).

Paras 87, 89.

1998 (2) SA 1068 (T).

At 1074–5.

Section 7(6).

Himonga, op. cit., n 10, 106.

Ibid.

Similar provisions exist in other jurisdictions. For example, Marriage Act R.S.O. 1990, c. M.3, section 20(2) (Ontario); Marriage Act 1949, sections 53–7 (UK).

Constitution of South Africa 1996, section 9(3).

South African Government News Agency, Imams Graduate as Marriage Officers, 1 May 2014. Available at www.sanews.gov.za/south-africa/imams-graduate-marriage-officers (accessed 9 December 2019).

Canadian Divorce Act R.S.O., 1985, c. 3 (2nd Supp.), section 21(1)(3) contains a similar provision. See also Divorce (Religious Marriages) Act 2002 (UK).

Section 1: definition of ‘spouse’.

1997 (2) SA 690 (C).

Ryland v Edros 1997 (2) SA 690 (C) at 707E-H.

Ibid., 708J.

Ibid., 718I-J.

1999 (4) SA 1319 (SCA).

Paras 14–15, 20, 25.

Paras 1, 3, 10.

Para 20.

2004 (5) SA 331 (CC).

2009 (5) SA 572 (CC).

2009 (3) SA 178 (D).

2018 (5) SA 13 (CC). For a more detailed analysis of the case, see W. Amien, ‘A Discussion of Moosa No and Others v Harnaker and Others Illustrating the Need for Legal Recognition of Muslim Marriages in South Africa’, Journal of Comparative Law in Africa 6(1), 2019, 115–30.

Moosa NO and Others v Harneker and Others 2017 (6) SA 425 (WCC). For a more detailed analysis of the case, see Amien, ibid.

Paras 11–16.

Para 21.

(Part A) (TPD) (Unreported 15 December 2006, Case No: 3954/06).

Wynberg Magistrates’ Court (2 November 2009).

2005 (2) SA 272 (T).

2010 (2) SA 223 (ECP). Also published as Mahomed v Mahomed [2009] JOL 23733 (ECP).

Case No: 18141/09, Judgment delivered 18 November 2009 (WCC).

Hoosain, op. cit., n 65, para 31; AM, op. cit., n 63, para 14.

Amod, op. cit., n 46, para 28.

A similar approach was adopted by the British Columbia Supreme Court of Appeal, which was willing to treat a mahr agreement as a valid and enforceable marriage agreement under the British Columbia Family Relations Act R.S.B.C. 1996, c. 128. In particular, the Court found that the mahr agreements conformed to the provisions of the Act. Nathoo v Nathoo [1996] B.C.J. No. 2720 (S.C.) [Q.L.]; Amlani v Hirani [2000] B.C.J. No. 2357 (S.C.) [Q.L]; N.M.M. v N.S.M. [2004] B.C.J. No. 642 (S.C.) [Q.L.].

2018 (6) SA 598 (WCC). For a detailed analysis of the case, see W. Amien, ‘Islamic Family Law Reform in Non-Muslim Majority Countries: The Case of South Africa’, Journal of Islamic Law 1, 2019.

Paras 57, 179.

Para 252.

Ibid.

This is referred to as the doctrine of religious entanglement, which was confirmed in Taylor v Kurtstag NO and Others 2005 (1) SA 362 (W). In Taylor, the Witwatersrand Local Division of the High Court dismissed an application to restrain the Beth Din (Jewish Ecclesiastical Court) from issuing, publishing or disseminating a cherem to excommunicate the applicant from the Jewish faith (paras 39, 61, 65).

2007 (3) SA 445 (D).

Paras 50–1.

A copy of the bill is on file with the author.

Ibid.

Available at www.gov.za/sites/default/files/gcis_document/201409/30663b.pdf (accessed 9 December 2019).

South African Law Reform Commission, Project 144 Single Marriage Statute Issue Paper 35 (2019). Available at www.justice.gov.za/salrc/ipapers/ip35_prj144_SingleMarriageStatute.pdf (accessed 9 December 2019). Department of Home Affairs, The Consultative Stakeholder Engagements for the Development of the Marriages Policy, September 2019. Available at www.dha.gov.za/index.php/notices/1286-the-consultative-stakeholder-engagements-for-the-development-of-the-marriages-policy (accessed 9 December 2019).

Clause 10(1)-(2) RRMB. See also Divorce Act 70 of 1979, section 3(a).

See further W. Amien, ‘A South African Case Study for the Recognition and Regulation of Muslim Family Law in a Minority Muslim Secular Context’, International Journal of Law, Policy and the Family 24(3), 2010, 361–96, 369.

Clause 10(1)-(2) RRMB.

Clause 10(3) RRMB.

A detailed analysis of the 2003 MMB is available in Amien, op. cit., n 88, 370.

For a description of the negative impacts of non-recognition of Muslim marriages on women, see Amien, op. cit., n 88, 363 and Amien, op. cit., n 74.

W. Amien and R. Shabodien, Comments to the Minister of Justice and Constitutional Development on the Muslim Marriages Bill. Compiled on behalf of the Recognition of Muslim Marriages Forum, 23 May 2011.

Ibid.

W. Amien, ‘Politics of Religious Freedom in South Africa’, The Immanent Frame: Secularism, Religion and the Public Sphere, SSRC, 2012. Available at http://blogs.ssrc.org/tif/2012/07/24/politics-of-religious-freedom-in-south-africa/ (accessed 9 December 2019).

See clause 1: definition of ‘court’.

Clause 15 (1) (a)-(b).

Clause 13 (1).

Clause 12 (1).

Arbitration Act 42 of 1965, section 2.

South African Law Reform Commission Discussion Paper 148 Project 100D, Alternative Dispute Resolution in Family Matters, 2019. Available at www.justice.gov.za/salrc/dpapers/dp148-prj100D-ADRFamilyMatters-Nov2019.pdf (accessed 9 December 2019).

Ibid., 8.

Ibid.

Ibid., 243.

Women’s Legal Centre Trust, op. cit., n 60 at para 100.

Amien, op. cit., n 72, 373.

Ibid., 381.

Green Paper on Families: Promoting Family Life and Strengthening Families in South Africa, Government Gazette No. 34657, General Notice 756, 3 October 2011, pp. 24–5, 6. Available at www.info.gov.za/view/DownloadFileAction?id=152939 (accessed 26 June 2013).

Ibid., 6. Land dispossession was codified in the Native Land Act 27 of 1913 and Group Areas Act 41 of 1950. The Native Land Act dispossessed indigenous Africans from 87 percent of their arable land and allowed them to own up to only 13 percent of arid land. This forced many indigenous Africans to move to urban areas in search of work.

Green Paper on Families, op. cit., n 92, 6.

Ibid., 17.

Apartheid classifications, namely, black, coloured and Indian, are retained in South Africa only for the purposes of implementing affirmative action measures to protect and promote members of historically racially disadvantaged groups. Under the Employment Equity Act 55 of 1998, black Africans, coloureds and Indians are generically referred to as black. Green Paper on Families, op. cit., n 116, 16–17. Indigenous Africans comprise the majority of South Africa. They account for 79.2 percent of a total population of 51,770,560. Coloureds and whites each make up 8.9 percent of the total population, while Indians comprise 2.5 percent of the total population. Statistics South Africa, Census 2011: Census in Brief, 18, 21, Statistics South Africa, 2012. Available at www.statssa.gov.za/Census2011/Products/Census_2011_Census_in_brief.pdf (accessed 27 June 2013).

Volks v Robinson [2005] ZACC 2.

Preamble, clause 6.

Clause 2(a).

Preamble.

Volks, op. cit., n 97 at para 172.

Clause 19.

Clause 20.

Clause 9.

Preamble, clause 6.

Clause 13.

Clause 15(1).

Constitution of South Africa 1996, section 28(2); Children’s Act 38 of 2005, section 9.

Clause 1.

Ibid. This provision incorporates the Supreme Court of Appeal’s finding that a domestic partnership may be inclusive of family life therefore non-financial contributions such as unpaid labour in the home could form part of a partnership agreement. Butters v Mncora 2012 (4) SA 1 (SCA) at para 23.

Clauses 7(1) and 7(3).

Marriage Act, Civil Union Act, Matrimonial Property Act.

Clauses 1, 4(1).

Clause 29(3)(c).

The recommendation may not be pertinent for the South African Hindu community. Although polygyny is permissible in Hindu marriages, monogamy appears to be the norm among South African Hindu marriages. D.S.P. Cronje and J. Heaton (eds), South African Family Law, 3rd edition, South Africa: LexisNexis, 2010, p. 237.

Op. cit., n 70.

Department of Home Affairs, op. cit., n 70.

South African Law Reform Commission, op. cit., n 70, 14. Department of Home Affairs, ibid.

For a more detailed analysis of the proposed single marriage statute, see Amien, op. cit., n 60.

South African Law Reform Commission, op. cit., n 70, 22.

Ibid., 15.

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