With recent changes to the Divorce Act, what now for Hindu marriage?
We’ve written at length about customary marriage and Muslim marriage on this website, and have been pleased to see the evolution of our common law to accommodate diverse cultural and faith practices in South Africa. In June 2022, the Constitutional Court declared several sections of the Marriage and Divorce Acts unconstitutional as they excluded Muslim marriages. In May of this year President Cyril Ramaphosa signed the Divorce Amendment Bill into law, changing the status of Muslim divorces. The associated Marriage Act Amendment has been delayed until June 2026, after Parliament in the new GNU requested more time to address the defects and invite public participation in the amendment process. Parliament cited the complexity of the amendments and the need for thorough consultation with stakeholders, including Muslim, Hindu and Jewish communities. A recent case that came before the Durban High Court concerning Hindu marriage suggests this consultation is overdue. In fact, it begs the question: why were the legislative changes not broad enough to encompass other religious traditions in South Africa?
Hindu marriage in South Africa
Marriage under Hindu law in South Africa is similar to that of Muslim and Jewish law. Historically all were unrecognised as valid marriages due to their non-compliance with the Marriage Act, unless the marriage was also registered in terms of the common law. The Marriage Act Amendment does not include Hindu marriages, so if the marriage is not compliant with the Marriage Act the wife is not recognised as a legal wife and is not entitled to a share of her husband’s estate on the dissolution of the marriage.
Meanwhile, in Durban High Court
Recently, a Hindu woman in Umhlanga has challenged the legal system, claiming it does not provide equal protection, benefits and recognition to couples who marry via Hindu rites and later divorce. This amounts to discrimination, she asserts. She and her husband were married in 2009 and have one child. They were married according to Hindu custom and did not register the marriage under the Marriage Act. The marriage has now broken down irreparably and she is effectively denied her share of their joint estate, despite contributing to the union.
She lodged an application with the Durban High Court for maintenance for herself and her child, and for 50% of their joint estate. She cited the Department of Home Affairs and the Department of Justice and Constitutional Development as co-respondents in the hopes they will be compelled to take the relevant steps to amend clauses in the Marriage Act and Divorce Act to cover marriages according to Hindu rites.
Rights and wrongs
The current changes to both acts recognise marriages under Muslim law but not Hindu marriages. The woman juxtaposed the rights and recognition given to Hindu marriages against the rights afforded to civil marriages or unregistered Muslim marriages. She claimed that the Divorce Act Amendment safeguards the interests of women and children of these unions in the event of a dissolution, but people married under Hindu rites do not enjoy the same dignity of dissolving their unions via the courts. There are also no safeguards for the rights of dependent minor children born in Hindu marriages and no provisions for the redistribution of assets for dissolved Hindu unions.
She said, “I am deprived of the full and equal enjoyment of all rights and freedoms enjoyed by others in terms of the Marriage Act, especially persons married by way of a Muslim marriage, which has not been registered as a civil marriage. The State has directly or indirectly discriminated against persons married in a Hindu marriage by excluding them from the provisions of the Divorce Act.”
Universal partnership
In the absence of legal status for the marriage, the woman requested an order declaring that a universal partnership existed between the couple, its dissolution coming into effect from the date of her summons. She requested maintenance for herself and her child and asked for a liquidator to be appointed to determine the assets of the partnership and ensure their fair distribution.
But the reason this case is newsworthy is because she asked that the various clauses on marriage and divorce be amended by the lawmakers and be widely publicised.
We’ve been here before
This is not the first time a Hindu wife has pleaded a case before the courts. A well-known example is Singh v Ramparsad, from 2007. The parties in this case were married according to Vedic tradition and had agreed not to have their marriage registered in terms of the Marriage Act. When they separated in 2000, the wife approached the court for an order declaring their marriage valid in terms of the Marriage Act and entitling her to seek a divorce in terms of the Divorce Act. She said the non-recognition of their marriage violated her right to equality and dignity in terms of the Constitution. However, the court ruled that the Marriage Act makes provision for secular and religious marriages and did not violate the rights of the wife. The couple chose not to register their marriage, and so its non-recognition did not constitute inequality or infringement of dignity. The court refused to declare the Marriage Act and the Divorce Act unconstitutional or to recognise the validity of the Hindu marriage.
It seems very unlikely the court would reach the same conclusion were that case to come before the courts today. We await the outcome of the GNU’s consultation on the Marriage Act and the final provisions when they are gazetted.
We can help
SD Law & Associates are experts in divorce and family law, based in Cape Town, Johannesburg and Durban. If you need advice about the Divorce Act changes or any aspect of marriage or divorce, whether Muslim, customary, or other faith practice, we can help. Contact us or call 086 099 5146 or email sdippenaar@sdlaw.co.za
Further reading:
- Sharia marriages: SCA declares marriage act and divorce act inconsistent with constitution
- Changes for divorce in South Africa signed into law
- Reforms to marriage laws on the way
Divorce Attorney Cape Town
http://divorceattorneycapetown.co.za/The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.