Same sex marriage is legal in South Africa but religious marriage is not legal and it is argued that the failure to have laws validating and regulating religious marriages leaves women vulnerable.
Apart from civil marriages, only customary marriages and same-sex unions are legally recognised in South Africa.
Until the end of apartheid in 1994, only civil marriages concluded under the Marriage Act were legally recognised in South Africa.
After 1994, the new Constitution recognised different forms of marriages, including traditional and religious marriages but they were not legalised.
Laws have not been passed to recognise religious marriages as legally valid.
In 2010, the Muslim Marriages Bill was approved by Cabinet but was never been passed into law.
Two years ago, the state’s failure to legally recognise Muslim marriages was challenged in the Western Cape High Court and the Court held that by not having legislation that recognises and regulates the marriages, the state violated several constitutional rights.
These included the rights of Muslim women to equality, dignity and freedom of religion.
It was found that the state abdicated its constitutional obligations to “respect, protect, promote and fulfil the rights in the Bill of Rights”, and to perform its constitutional obligations “diligently and without delay”.
The Court ordered the state to prepare, initiate, enact and bring into operation legislation to recognise and regulate Muslim marriages by 31 August 2020.
The judgment is being appealed in the Constitutional Court and the deadline imposed by the High Court is thus suspended pending the outcome of the appeal.
The arguments raised in the judgment are arguably also relevant to other minority religious marriages, including Hindu and Jewish marriages.
The failure of the state to recognise religious marriages is a major omission in a country that boasts a constitution that promotes diversity.
Nonrecognition of religious marriages undermines the dignity of spouses as those who do not also have a civil marriage continue to be regarded as unmarried. When they die, their death certificates reflect that they were never married. This confirms that their spousal relationship had no legal significance.
The right of spouses in those marriages to equal treatment and protection of the law is undermined by not affording legal recognition to religious marriages.
Women in religious marriages are said to be unfairly discriminated against on the basis of gender and sex as women in Muslim, Hindu and Jewish marriages have difficulty exiting religious marriages.
Meanwhile, the Legal recognition and regulation of their marriages could assist them in doing so.