The need to address lived realities of inequality – Legal recognition for religious marriages
20 September 2018
To reflect the realities of a diverse society, the Constitution broke away from the dominant colonial view of family dynamics. The Constitution provides that everyone has the right to “freedom of conscience, religion, thought, belief and opinion” and to enjoy and practice their culture and religion - on the condition that it is in line with the Constitution.
Although the institution of marriage is not recognised as a right, the Constitutional Court held in 2006 in Minister of Home Affairs and Another v Fourie and Another that marriage is a fundamental unit of our society. Further, it held in 2015, in DE v RH, that the institution of marriage has “constitutional significance”. The Constitution, in contrast to many strict secular systems, even goes as far as providing in section 15(3) that the legislature is not prevented from drafting legislation recognising marriages concluded under any religious system or tradition - on the condition that it is not at odds with other constitutional rights.
The reality, however, is that marriage as an institution has various public consequences impacting in areas such as inheritance, tax and medical insurance - and this requires legal certainty. Although the Constitution provides the scope for legislation to regulate such religious marriage, no such legal recognition exists.
Currently, parties to a religious marriage such as a Muslim, Hindu or Jewish marriage must also register their marriage either in terms of the Marriage Act or Civil Union Act, for it to be legally recognised. However, a further anomaly exists in that a polygamous couple, married, for instance, in terms of Islamic or Jewish rites, are not only excluded from the Marriage Act and Civil Union Act (applicable only to monogamous marriages) but also the Recognition of Customary Marriages Act (Customary Marriages Act). The Customary Marriages Act provides legal recognition to monogamous and polygamous customary marriages but is restricted to customary marriages concluded in terms of the customs of indigenous African people of South Africa. Therefore, unless a couple married in terms of religious tenets (and only those in monogamous relationships) also registered their marriage either in terms of the Marriage Act or Civil Union Act, there would be no automatic legal consequences on the dissolution of such marriage by divorce, for instance. Such automatic legal consequences include, for example, the division of property and the custody of children.