“Spouse” includes a surviving partner to a monogamous Hindu marriage

A spouse of a “marriage” by Hindu rites enjoys recognition by South African law for inheritance purposes.

The Govenders were married to each other on the 22nd August 2004 according to the rites and customs of the Hindu religion. They enjoyed a monogamous marriage in accordance with the rites, customs and traditions of the Hindu religion and respected the vows that they took at the Hindu marriage ceremony to be faithful and committed to each other in a monogamous union they considered binding and duly respected. The said marriage was not registered in terms of the Marriage Act No.25 of 1961.
Mr Govender died without leaving a will and the executor in his estate prepared the estate accounts on the basis that his father and mother were the sole heirs.

The surviving partner applied to court for an order that: “The word spouse as used in the Intestate Succession Act 81 of 1987 (the Act), includes a surviving partner to a monogamous Hindu marriage.”
The application was opposed by the parents of the deceased who, if they were successful, would stand to inherit the deceased’s estate in its entirety in equal shares to the exclusion of the surviving partner. On the other hand, if the surviving partner was successful in the relief that she sought, she would inherit the deceased’s entire estate on the basis that in terms of the Act, where the deceased leaves a surviving spouse and no descendants, he or she is the sole heir.
In Govender v Ragavayah NO and Others the court examined recent the Constitutional Court cases which have extended the ambit of the Intestate Succession Act to:
(a) partners in a permanent same-sex life partnership in which the partners have undertaken the reciprocal duties of support (Gory v Colver NO (Stark Intervening) 2007(4) SA 97 CC);
(b) intestate deceased estates that would formerly have been covered by section 23 of the Black Administration Act No.38 of 1927;
(c) the surviving partner to a monogamous Muslim marriage (Daniels v Campbell NO & Others 2004 (5) SA331 CC).
To date no challenge had been brought in respect of persons married under Hindu rites, with the result that this category of persons continued to be excluded from the provisions of the Intestate Succession Act.
The court found that the conclusion of a marriage in terms of Hindu rites and custom is an inherent element of the right and freedom associated with religious and cultural choices. Accordingly, it held that ‘in the light of what has been stated in all the cases, referred to above, I am of the view that there is judicial support for the proposition that a spouse of a “marriage” by Hindu rites may well have the religious “marriage contract” given some recognition by South African law for certain purposes. It is not difficult to conclude on the evidence in the present case before court, that the union had all the essential attributes of a South African marriage, which is fundamentally a voluntary union for life of one man and one woman to the exclusion of all others, while it lasts. It is trite law that presently in terms of our law a Hindu marriage which has not been registered in terms of South African law is invalid; but that does not settle the question to be decided in this case. In my view, the validity of the marriage is not required for the relief that the applicant seeks in her Notice of Motion.
In the end result, in the light of all the above judgments in the light of the circumstances in this case, this Court came to the conclusion that the relief sought by the Applicant in her Notice of Motion should be granted and made an order that:
• The word ‘spouse’ as used in Section 1 of the Intestate Succession Act 81 of 1987 includes the surviving partner to a monogamous Hindu marriage.

• The applicant was declared for the purposes of Section 1 of the Intestate Succession Act 81 of 1987, to be a ‘spouse’ of the deceased.

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