Islamic and Hindu Marriages in South Africa
                     
The Non-Recognition of 
Islamic and Hindu 
Marriages in South Africa
Islamic and Hindu Marriages are not legally 
recognised in South Africa
THE NON-RECOGNITION OF ISLAMIC 
AND HINDU MARRIAGES
On 18th December 2020, the Supreme Court of Appeal handed 
down judgement that our Constitution, which strongly advocates 
diversity, did not recognise, or even regulate Muslim marriages. 
This has long disadvantaged vulnerable Muslim women and 
children. This status also extends to Hindu marriages within the 
South African Republic.
Our Constitution doesn’t recognise either Muslim or Hindu 
marriages without a Civil Ceremony being conducted. Absence of 
this left women degraded as having few if any rights. Now an 
order is currently under review by the Constitutional Court which 
has reserved judgement as yet. Based on our law’s most recent 
changes, Muslim marriages will now have recognition of sorts 
while Hindu’s must remain hoping.
In recent years, several judgements have criticised policy makers’ 
inability to ensure that certain action is taken to recognize these 
marriages and in turn safeguard the rights of vulnerable children 
and women.
The failure to recognise such marriages has often resulted in 
these individuals’ rights to equality, dignity and access to courts 
being violated.
Muslim Marriages prior to the December 
2020 Supreme Court of Appeal Judgement
For Muslim marriages to be recognised in South Africa, a separate civil 
ceremony had to be conducted. This had to be done either in terms of 
the Civil Union Act [No. 17 of 2006] or the Marriage Act [No.25 of 1961].
If this were not done, the marriage would have been treated as a 
putative marriage out of community of property and with the exclusion 
of the accrual system.
Further, a decree of divorce was not required, and it was virtually 
impossible for women to terminate the marriage relationship on her 
own.
This has often resulted in women being forced to stay in a 
marriage in which they were not satisfied in – even in the face of 
violence and heartache.
Through the years, recent developments were made to safeguard some 
of these rights of these woman, specifically in regard to maintenance 
and the duty to support a spouse. The recognition of Muslim marriages 
was not necessary for a spouse to claim interim maintenance and the 
duty of support owed towards the other was recognised to some extent.
The Supreme Court of Appeal 
Judgement
The Supreme Court of Appeal South 
Africa
The Court held that section 9, 10, 28 and 
34 of the Marriage Act and section 6, 
section 7(3) and section 9(1) of the 
Divorce Act [No. 70 of 1979] were in 
inconsistent with the Constitution in 
respect of the recognition of Muslim 
marriages in South Africa. It was indicated 
that the legislation fails to provide 
mechanisms to safeguard the welfare of 
minors of Muslim marriages and fails to 
cater for the redistribution of assets in 
respect of these marriages.
The court also found that the common law 
definition of marriage, was inconsistent 
with the South African Constitution and 
therefore invalid to the extent that it 
excludes Muslim marriages.
These invalidities identified by the Supreme Court of 
Appeal, were referred to the Constitutional Court for 
confirmation.
It was suspended for a period of twenty-four months to 
allow for the President and Cabinet with Parliament to 
remedy the defects identified by the Court.
The order is currently being deliberated on by the 
Constitutional Court which has reserved judgement.
In the interim of these legislative developments coming 
into effect, it has been declared that a union validly 
concluded as a marriage in terms of Sharia law and 
subsisting at the time of this decision, which has been 
terminated and which legal proceedings have been 
instituted but not finally determined as of said date, 
would be dissolved in terms of the Divorce Act.
Hindu Marriages in 
South Africa  
Completed Henna Design of Bride to Be
Like Muslim marriages, marriages conducted 
by Hindu rites have also been subject to 
judicial scrutiny in recent years. These 
marriages are not recognised in South Africa 
and the parties within a Hindu marriage are 
only considered as being “married in terms of 
Hindu Rites”, in terms of our laws.
This is regarded as putative marriages and 
are deemed to be out of community of 
property with the exclusion of the accrual 
system.
It has often been recommended that parties 
to a Hindu marriage should conclude a 
separate civil ceremony to ensure that the 
normal legal consequences of marriages 
under South African law would also be 
applicable to the parties’ marriage.
At present, the protection of individuals within a Hindu marriage 
that occurs only through Hindu rites are limited. The parties are 
allowed the possibility to claim maintenance, in circumstances 
where spousal support is required.     
Based on the most recent development in our law, now Muslim 
marriages will enjoy the same rights and legal securities available 
and afforded to couples of civil marriages, customary marriages 
and even civil unions.
This is besides the fact that the matrimonial property regime will 
be regarded as out of community of property.
This will ensure that married Muslim women and men will be able 
to obtain a decree of divorce, be afforded certain proprietary 
claims depending on the applicable matrimonial regime and in 
certain instances even seek the forfeiture of patrimonial benefits 
in terms of the Divorce Act.
Despite these developments, the non-recognition of Hindu 
marriages in South Africa, still may require reform to ensure that 
couple’s marriage in terms of Hindu rites is afforded the same 
legal securities and rights as its other marriage counterparts. 
Learn more
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