Religious Marriages and the results thereof

Marriage in South Africa exists in a number of different forms, as a result of the diversity of religions and cultures in the country.

This article has been written by Michelle Orsmond, an in-house Family Law expert at Hammond Pole Attorneys. 

In this article, we take a brief look at foreign and customary marriages and the implications thereof when entering into such a marriage.

Religious marriages, more in particular Muslim Marriages, have no legislative framework governing them. These religious marriages are not legally recognized as having the same legal status as civil marriages in terms of the Marriage Act 25 of 1961. The consequence of this is that there are no legislative protections for persons married according to religious rites.

The Constitution and the legality of such marriages

Our Constitution has passed laws in favour of African customary marriages which have obtained full legal recognition, once requirements in respect of the Recognition of Customary Marriages Act have been complied with. Further marriages between same-sex couples have been made legally possible in terms of the Civil Union Act.

Polygynous marriages such as Muslim marriages, Hindu marriages, and Jewish marriages have not yet been afforded legal recognition. Often cases have been referred to court as it said to infringe on the rights to dignity, freedom of religion, and equality of spouses in religious marriages and children born within those marriages.

The non-recognition of certain religious marriages has far-reaching implications and consequences for spouses in these types of marriages, as they do not have the protections offered to spouses in civil marriages. 

Can Religious Marriages be registered in terms of the Marriages Act?

Civil marriages are solemnised at religious organisations i.e. temples, churches, as this is a requirement for a marriage to be binding between parties. 

Muslim couples can get married in terms of the Marriage Act. However, the Marriage Officer cannot register a polygynous marriage as polygynous marriages are not recognised by the Marriage Act, and thus cannot be registered. Therefore, in some instances, this registration is not possible. However, a Muslim marriage will only be valid where the marriage is solemnized by a marriage officer duly registered as such in terms of the Marriage Act.

Muslim marriage can be solemnised by an Imam, who is a marriage officer and is deemed to be the same as a civil marriage in terms of the Marriage Act. In other words, such a marriage will be in-community of property, unless the spouses have entered into an antenuptial contract whereby excluding the community of property regime with or without the inclusion of the accrual system.

There are three types of marriages under a Civil marriage and these include:

• Married  in community of property;
• Married out of community of property with the inclusion of the accrual system; or 
• Married out of community of property with the exclusion of the accrual system.

The above marital regimes do not make provision for Polygynous marriages.

What is the effect of not recognising Religious Marriages?

By not recognising certain religious marriages under common law, most spouses are not afforded legal protection and do not have access to the courts to assert their rights. 

Therefore women, for example, Muslim women are vulnerable to being economically disadvantaged in the event of divorce. Similarly, because the Marriage Act does not recognise polygynous marriages, in cases of death or divorce, it can be difficult for the female surviving spouses to access justice and a fair share of the marital assets. 

However, in some religious marriages, Muslim, Hindu, and Jewish wives could obtain a civil divorce through a civil marriage if such marriage was entered into with a religious marriage, they may be prohibited or restricted from getting a religious divorce. They would, therefore, be deemed to still be married under religious law thus preventing them from concluding further religious marriages. 

Yet, their husbands would be able to enter subsequent marriages due to the polygynous nature of their religious marriages.

Before entering into a marriage, seek legal advice regarding proprietary consequences between spouses. 

For more assistance on this and other topics, please email info@hammondpole.co.za or contact our office on 011 874 1800.