Summary
Summary RELIGIOUS MARRIAGE - FAMILY LAW
- Course
- Family Law
- Institution
- University Of The Witwatersrand (wits)
Summary of 5 pages for the course Family Law at wits
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Family Law: Topic 9Religious Marriages
Religious marriage prescribes to religious rituals in the eyes of G-d, while civil marriage
prescribes to legal requirements in the eyes of the state.
WHEN IS A RELIGIOUS MARRIAGE ALSO A CIVIL MARRIAGE?
Some religious marriage ceremonies are recognised by the law as a civil marriage if the
person performing it is a registered marriage officer and the ceremony has been
approved by the Department of Home Affairs.
Most Christian ceremonies are recognised, however during Apartheid some opposed the
Mixed Marriages Act and refused to register as marriage officers.
According to the Marriage Act, the Minister can designate religious leaders as marriage
officers, specifically mentioning Christian, Jewish, Mohammedan and Indian religions.
The Civil Unions Act is broader and doesn’t explicitly (clearly) list religious groups and
therefore more groups are eligible (qualified).
ARE RELIGIOUS MARRIAGE RULES RECOGNIZED AND ENFORCED BY
CIVIL LAW?
The law is separate from religion, however Christian rules influenced South African
marriage laws which causes overlap.
Couples Married According to Religious Law and Civil Law
◦ Rules of Christian marriage were adopted into Roman-Dutch law, stating that the
males were dominant in the family; such laws are not recognised as common law.
◦ Other laws, like spousal support, stem from religion.
◦ However, the courts are enforcing civil laws that happen to form part of religious
marriages as well.
◦ In terms of divorce, the courts do not make religious enquiries and will proceed if
the legal requirements are fulfilled.
◦ The Civil Unions Act attempts to break from Christian based ideals by not listing
religions and allowing same-sex marriage.
Couples Married According to Religious Law Only
◦ The law provides for freedom of religion and therefore cannot prohibit religious
marriages or force people to marry according to civil law.
Singh v Ramparsad The law is even-handed and of uniform application, therefore a civil
marriage must also be concluded in order to enjoy legal protection.
◦ Jewish and Christian ceremonies are recognised, while Hindu and Muslim couples
are required to register civil marriages as well.
◦ Hindu priests and imams refrain from registering to protest the refusal to recognise
their personal law.
◦ In some cases, the courts have used marriage-esque rules when dividing property,
assuming a civil partnership.
◦ The courts recognise the existence of these marriages when looking at intestate
succession or spousal support.
◦ The Muslim Marriages Bill seeks to integrate these rules into civil law for couples
who choose to conclude Muslim marriages.
, ◦ It is highly challenged.
MUTUALLY RESPECTFUL CO-EXISTENCE
Ismail v Ismail Pre-constitutional courts refused to recognise Muslim (and Hindu)
marriages for being potentially polygynous against the idea of marriage between one man
and one woman.
This has since been found unconstitutional in terms of s10, s15 and s30.
PATCHY RECOGNITION OF MUSLIM AND HINDU MARRIAGES
Courts have assisted spouses and children involved in religious marriages only if it
would result in unfairness not to.
Religious Marriages as Universal Partnerships
◦ The principles of universal partnerships apply to religious marriages and to couples
who have not concluded any marriages.
◦ This is an intimate partnership without a civil marriage/union.
◦ Universal partnerships affect assets and when dissolved, property is fairly divided.
◦ Either according to a partnership agreement or in absence according to the
contribution of each party to the joint enterprise of the relationship.
◦ In Ismail, it was shown that as both devoted all their time the property is divided
equally.
Rules of Custom
Van Breda v Jacobs Custom is binding in civil law when it is long standing, uniformly
observed, reasonable, definite and certain.
Ismail Mrs Ismail asked for what was due to her according to Islamic law, she argued
qualified as custom. The court refused based on the idea that Muslim marriages are
potentially polygynous.
Regulation in Terms of Rules of Contract
Ismail Mrs Ismail claimed that they entered into a contract regarding maintenance and
dower, however the court refused as above. Today the courts will enforce aspects of religious
marriage as civil law contracts.
Statutory Recognition of Religious Marriages
◦ Some statutes use the definitions of ‘marriage’ and ‘spouse’ to include religious
marriages.
◦ Children’s Act: Marriage; Domestic Violence Act: Domestic Relationship; Income
Tax Act: Spouse.
Extension of Benefits to Spouses in Religious Marriages
◦ The courts have given marriage-esque benefits to religious marriages on a case by
case basis.
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