HINDU MARRIAGES IN SOUTH AFRICA

By Sasha Goldstein

Hindu law in South Africa is similar to that of Muslim and Jewish law. All these legal systems are currently unrecognised, and the implication is that marriages concluded in terms of Hindu law are not recognised as valid marriages due to their non-compliance with the Marriage Act[1]  and their potentially polygamous nature. In practice, a Hindu couple who wishes to marry concludes two marriages, namely one according to Hindu rites and the other in terms of the common law.

If the parties do not comply with the requirements of the Marriage Act, their marriage is invalid, and the wife (or husband) will not be recognised as a legal spouse.  If the marriage is invalid in terms of the common law, the wife is not recognised as the legal wife of a Hindu testator, and she would be excluded from inheritance in terms of the rules of the South African intestate succession.

On the other hand, if they do comply with the requirements of the Marriage Act, the implication is, firstly, that the common law would apply to their marriage, and secondly, that their estates would devolve in terms of the South African law of intestate succession.

The prohibition against Hindu marriages also applies to Hindu marriages concluded outside South Africa. Due to its polygamous nature, such a marriage is not recognised as a valid marriage in South Africa.

The non-recognition of unregistered Hindu marriages in South Africa may have dire consequences for Hindu spouses, especially the wife.  An example is Singh v Ramparsad[2]  where the High Court had to deal with the validity of a Hindu marriage concluded according to the Vedic tradition in 1987.

The parties in this case agreed not to have their marriage registered in terms of the Marriage Act and, as a result, it was not regarded as a valid marriage in terms of South African law. As a result of the breakdown of their marriage, the parties separated in 2000 and led separate lives ever since. In terms of Hindu law, the wife could not divorce her husband and she approached the court for an order declaring, inter alia, that their marriage was a valid marriage in terms of the Marriage Act and consequently that she was entitled to seek a divorce in terms of the Divorce Act[3]. She argued that the non-recognition of their marriage violated her right to equality and dignity in terms of the Constitution.  The court evaluated the relevant provisions of the Constitution and the Marriage Act and concluded that the Marriage Act makes provision for secular and religious marriages and that it does not violate the rights of the wife. The fact that the parties nonetheless opted not to register their marriage which consequently led to the non-recognition of their marriage does not lead
to inequality or infringement of dignity. Consequently, the court refused to declare the Marriage Act and the Divorce Act unconstitutional or to recognise the validity of the Hindu marriage.

Nevertheless, the fact that that the Hindu marriage is not recognised as a valid marriage does not mean that the courts are shy to afford relief to aggrieved litigants. In Govender v Ragavayah[1], the High Court held that although a Hindu marriage is not regarded as a valid marriage in terms of South African law, it can be given some recognition for certain purposes. In this particular case the court held that a surviving partner to a monogamous Hindu marriage is also a spouse in terms of the Intestate Succession Act[5]

In conclusion, South African’s are free to marry under whichever religious rites they choose. However, it is always advisable to thereafter register the marriage as a civil union and/or enter into an antenuptial contract in order to afford both parties equal rights under South African law and to avoid any issues in terms of the laws regulating divorce and succession.

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