THE MARRIAGE ACT 25 OF 1961, THE DIVORCE ACT 70 OF 1979, AND THE DISSOLUTION OF A HINDU MARRIAGE [DISCUSSION OF SINGH V RAMPARSAD 2007 3 SA 445 (D)] Jacqueline Heaton BLC LLM Professor, University of South Africa 1 Introduction South African law recognises three types of marriages, namely civil mar- riages, customary marriages and marriages that are civil unions. A civil union may also be called a civil partnership.1 The choice of whether their civil union is to be known as a marriage or a civil partnership rests with the parties to the union.2 The consequences of the civil union are the same regardless of whether it is called a marriage or a civil partnership, and correspond to those of a civil marriage.3 Civil marriages must comply with the requirements of the common law and the Marriage Act 25 of 1961 (“the Marriage Act”), customary marriages with the requirements of the Recognition of Customary Marriages Act 120 of 1998 (“the Recognition of Customary Marriages Act”), and marriages (and civil partnerships) that are civil unions with the requirements of the Civil Union Act 17 of 2006 (“the Civil Union Act”). For the sake of simplification, and because the consequences of a civil union correspond to those of a civil marriage,4 the phrase “civil marriage” will be used as a substitute for “civil marriage or civil union” in the remainder of the note.5 1 Ss 1 and 2(a) of the Civil Union Act 17 of 2006 2 S 11(1) 3 A civil union has the same consequences as “a marriage contemplated in the Marriage Act … with such changes as may be required by the context” (s 13(1) of the Civil Union Act 17 of 2006) S 13(2) of the Civil Union Act further provides that, with the exception of the Marriage Act 25 of 1961 and the Recognition of Customary Marriages Act 120 of 1998, any reference to “marriage in any other law, including the common law, includes, with such changes as may be required by the context, a civil union” and any reference to “husband, wife or spouse in any other law, including the common law, includes a civil union partner” The end result is that the consequences of a civil union correspond to those of a civil marriage However, this does not mean that a civil union is the same as a civil marriage or that the Civil Union Act offers an alternative method for entering into a civil marriage If the legislature intended civil unions to be civil marriages, it could have inserted a definition in the Marriage Act that covered civil unions The legislature would, furthermore, not have afforded the parties to a civil union the opportunity of calling their union a civil partnership Moreover, by specifically stating in s 13(2) of the Civil Union Act that the terms “marriage”, “husband”, “wife” and “spouse” in the Marriage Act and the Recognition of Customary Marriages Act do not apply to a civil union and the parties to the union, the legislature indicated that civil unions are neither civil nor customary marriages 4 See n 3 above 5 A caveat has to be added: where reference is made to solemnisation of a civil marriage in terms of the Marriage Act, it must be borne in mind that solemnisation of a civil union is regulated by the Civil Union Act, not the Marriage Act 452 SINGH v RAMPARSAD 453 Marriages that are concluded in terms of religious rites are fully recognised if they are de facto monogamous and meet the requirements of the Marriage Act or the Civil Union Act. Religious marriages that are fully recognised because they are monogamous and meet the requirements of the Marriage Act qualify as civil marriages and have dual validity.6 In other words, the religious and civil marriage exist side by side, with the consequences of the civil marriage being governed by the common law and the legislation that applies to civil marriages, and the consequences of the religious marriage being governed by the particular system of religious law in terms of which the marriage was celebrated. Religious marriages that do not meet the require- ments of a civil marriage are not yet fully recognised7 although some Acts recognise them for specific purposes.8 Court decisions have also extended protection to such marriages for specific purposes.9 The marriage in Singh v Ramparsad10 did not have dual validity. This note sets out the facts and critically discusses four aspects of the judgment. The first aspect relates to the solemnisation of religious marriages. The significance of solemnisation by a marriage officer who has been appointed in terms of the Marriage Act is explained. It is then concluded that the court does not have the power to convert a Hindu marriage that has not been solemnised in terms of the Marriage Act into a civil marriage by declaring that it falls within the ambit of the Marriage Act. Secondly, the effect of granting a secular divorce in terms of the Divorce Act 70 of 1979 (“the Divorce Act”) if the spouses have entered into a religious marriage is discussed. It is explained that it would have been futile to declare the Hindu marriage of the plaintiff in Singh to fall within the ambit of the Divorce Act. It is also explained that it would have been impermissible to impose divorce on Hindu spouses. Thirdly, the court’s decision regarding the plaintiff’s constitutional attack on the Marriage Act and Divorce Act is discussed. Finally, the court’s statements regarding so-called common-law marriages, marriages by common law and marriages under the common law are investigated. 6 Jewish and Christian marriages are examples of marriages that usually have dual validity 7 See eg Ismail v Ismail 1983 1 SA 1006 (A); Kalla v The Master 1995 1 SA 261 (T); Ramayee v Vandiyar 1977 3 SA 77 (D) 8 See eg the Births and Deaths Registration Act 51 of 1992, the Child Care Act 74 of 1983, the Domestic Violence Act 116 of 1998 and the Children’s Act 38 of 2005 which, as a whole, apply to religious mar- riages Other examples are s 10A of the Civil Proceedings Evidence Act 25 of 1965 and s 195(2) of the Criminal Procedure Act 51 of 1977 which recognise religious marriages for purposes of compelling a spouse as a witness in civil and criminal proceedings; s 4(q) read with s 1 of the Estate Duty Act 45 of 1955, which exempts property accruing to a surviving spouse in a religious marriage from estate duty; and s 1 read with s 9(1)(f) of the Transfer Duty Act 40 of 1949, which exempts property inherited by a spouse in a religious marriage from transfer duty 9 See eg Amod (Born Peer) v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 4 SA 1319 (SCA); Daniels v Campbell NO 2004 5 SA 331 (CC); Khan v Khan 2005 2 SA 272 (T); Ryland v Edros 1997 2 SA 690 (C) 10 2007 3 SA 445 (D) 454 STELL LR 2008 3 2 The facts in Singh v Ramparsad The plaintiff and her husband (first defendant) married in terms of the Vedic branch of the Hindu religion in 1987.11 This branch of Hinduism does not recognise divorce, because it considers marriage to be an indissoluble sacrament.12 Both spouses were aware of the indissolubility of their mar- riage. They also knew that their marriage would not be recognised unless it was solemnised in terms of the Marriage Act.13 The spouses initially agreed that they would not immediately have their Hindu marriage “registered” in terms of the Marriage Act. In the end they never had their marriage “registered”.14 The so-called registration of a reli- gious marriage in terms of the Marriage Act refers to going through a civil marriage ceremony at the magistrate’s court. Thus the “registration” actually refers to entering into a civil marriage.15 The practice of referring to regis- tration of religious marriages is a remnant of the registration procedure that used to be available under section 2 of the Indians Relief Act 22 of 1914.16 In terms of this procedure, a monogamous Muslim or Hindu marriage could be transformed into a legally recognised marriage by mere registration. Section 2 of the General Law Amendment Act 80 of 1971 abolished this procedure in 1972.17 In Singh the marriage relationship between the plaintiff and her husband broke down and they eventually separated.18 The plaintiff wanted a divorce to get closure.19 However, as Hindu law does not recognise divorce, the plain- tiff could not obtain a divorce in terms of her religion. She approached the Durban and Coast Local Division of the High Court for an order declaring that, on a constitutional interpretation, the Marriage Act either recognised the solemnisation and legal validity of religious marriages or did not preclude recognition of the solemnisation and legal validity of such marriages. In the alternative she attacked the constitutionality of section 11(3) of the Marriage Act, which provides that unauthorised solemnisation of a marriage in accord- ance with religious rites is not an offence if the ceremony does not purport to effect a valid marriage. She sought an order declaring section 11(3) unconsti- tutional to the extent that it precludes the solemnisation and legal validity of religious marriages that are not solemnised in terms of the Act. She further 11 Para 3 12 All the traditional branches of Hindu religious law consider marriage to be indissoluble because of its sacramental nature See Singh v Ramparsad 2007 3 SA 445 (D) paras 1, 2, 8, 9; Chakraborty Hindu Marriage.