The reality, however, is that marriage as an institution has various public consequences impacting in areas such as inheritance, tax and medical insurance – and this requires legal certainty. Although the Constitution provides the scope for legislation to regulate such religious marriage, no such legal recognition exists.

Currently, parties to a religious marriage such as a Muslim, Hindu or Jewish marriage must also register their marriage either in terms of the Marriage Act or Civil Union Act, for it to be legally recognised. However, a further anomaly exists in that a polygamous couple, married, for instance, in terms of Islamic or Jewish rites, are not only excluded from the Marriage Act and Civil Union Act (applicable only to monogamous marriages) but also the Recognition of Customary Marriages Act (Customary Marriages Act). The Customary Marriages Act provides legal recognition to monogamous and polygamous customary marriages but is restricted to customary marriages concluded in terms of the customs of indigenous African people of South Africa. Therefore, unless a couple married in terms of religious tenets (and only those in monogamous relationships) also registered their marriage either in terms of the Marriage Act or Civil Union Act, there would be no automatic legal consequences on the dissolution of such marriage by divorce, for instance. Such automatic legal consequences include, for example, the division of property and the custody of children.

At the core of this legal lacuna is the question of the constitutional right to equality. More specifically, it concerns the right to equal protection and benefit of the law for women who have been historically marginalised in the context of family power structures. The question of the constitutional right to equality in this instance was also the central focus in the recent Western Cape High Court judgment, Women’s Legal Centre Trust v President and Others, Faro v Bingham N.O and Others and Esau v Esau and Others (Women’s Legal Centre matter), delivered on 31 August 2018. In the Women’s Legal Centre matter, the State was taken to task for its failure to enact a legal framework to regulate Muslim marriages. This was argued to be a direct constitutional failure on the State’s part to put reasonable measures in place to protect rights such as women’s right to equality, dignity, and access to Courts. The State was ordered to introduce and bring such legislation into operation within 24 months. It is important to keep in mind that a draft Muslim Marriage Bill was already drafted by the South African Law Reform Commission in 2003. Further, in 2011 Cabinet published the Muslim Marriage Bill (X-2011) for public comment, but no further legislative steps were taken. The State argued that the matter raised complex and diverse views on the interpretation of Muslim personal law and, importantly, that there is no direct or indirect unfair discrimination on the basis of religion and gender, as women can choose also to register their marriage in terms of either the Marriage Act or the Civil Union Act.

This counter argument strikes at the heart of equality. The notion of the constitutional right to equality is context-sensitive. A guiding factor is the need to address the historical marginalisation of especially Muslim women. The fact that the Constitution now celebrates voluntary religious pluralism does not necessarily translate to bargaining power afforded to women.  This lived reality must be addressed. This is a key take-away from the Women’s Legal Centre matter. The Court held that in the eyes of the law, the status of a spouse married in terms of religious tenets is essentially not equal to that of spouse married either in terms of the Marriage ActCivil Union Act or the Customary Marriages Act. She does not have the automatic legal option, for instance, to approach the Court to request for a division of property in terms of the Divorce Act,which is just and equitable and which would have been possible for a spouse in terms of a civil marriage. Therefore, not only is there differentiation on the basis of religion, but also importantly, considering the historical vulnerability of women, on the basis of gender. These grounds are listed grounds for unfair discrimination in terms of section 9(3) of the Constitution. The State’s argument of voluntary choice, according to the Court, did not rebut this presumption of unfair discrimination, as it assumed women who historically had very little bargaining power in family structures would be able to insist on civil registration as well.

It is important to keep in mind that the Women’s Legal Centre order was not a judicial pronouncement on whether the Muslim Marriage Bill in its current format would stand constitutional scrutiny. It was a reaffirmation of the State’s constitutional duty take active measures to ensure that a legal framework is in place to provide the equal benefit and protection of the law to Muslim Religious marriages. In a broader context, the Women’s Legal Centre matter now also raises the question of other religious marriages. The Court specifically responded to the facts of the matter at hand and the long history of the vulnerabilities of women in Muslim marriages, evidenced by many court cases where the Court had to intervene to extend legal protection of certain legislation on a case-by-case basis. 

The State has a constitutional duty to ensure that reasonable legislative measures are in place to ensure women in all religious marriages have equal protection and benefit of the law. 

By Ms Christine Botha: Legal Officer, Centre for Constitutional Rights
20 September 2018

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