S Africa to introduce changes to marriage laws, recognise Hindu, Muslim alliances

The South African government is devising a new policy to change the country's marriage laws, including recognising traditional Hindu and Muslim alliances. Customary Hindu and Muslim marriages are currently not recognised as having the same legal status as civil marriages as per the country's Marriage Act 25 of 1961, which was enacted in the apartheid-era when only Christian marriages were recognised as being legal.

This has led to serious issues, especially in denying rights to Muslim women in second marriages allowed under the Islamic law. In order to avoid children born into such a marriage being classified illegitimate, Hindu and Muslim couples had to undergo a second civil marriage in a court of law.

The South African Department of Home Affairs (DHA) explained in a presentation to the Parliament that the legislation which currently regulates marriages in South Africa has been developed without an overarching policy based on the constitutional prescripts of equality, non-discrimination and human dignity. “Despite all the changes that have been made in the marriage legislation post-1994, there are still serious gaps in the current legislation.

“For instance, the current legislation does not regulate some religious marriages such as the Hindu, Muslim and other customary marriages that are practised in some African or royal families,” the DHA said. “Given the diversity of the South African population, it is virtually impossible to pass legislation governing every single religious or cultural marriage practice.

“It is against this background that the DHA is embarking in the process of developing a marriage policy that will lay a policy foundation for drafting a new single or omnibus legislation,” it said. The DHA said that the policy will be made available for public input during the coming year and for possible approval by the Cabinet by March 2021.

After the democratic order introduced with Nelson Mandela becoming the first democratically-elected President of the country in 1994, an attempt was made to correct this by appointing some Hindu priests and Muslim clerics who conducted Nikaah ceremonies as marriage officers. They were required to complete the relevant documents at the same time as the traditional marriage and submit them to the Department.

Now the government wants to make things simpler through harmonising the different approaches to traditional marriages, including customary unions in the Black African communities..

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