Module 9

Question 1

What are the 4 pathways to giving legal effect to religious marriages and unrecognised relationships?

Answer 1

• Religious marriage officers conduct civil marriages as well as religious marriage
• Simultaneous but separate religious and civil marriages
• Litigation has extended ad hoc legal benefits to certain religious marriages
• Common law concepts are applied to give rights to unrecognised relationships such as - Putative marriages or Universal partnerships.

Question 2

What are the requirements for a couple that goes through the ceremony for religious marriage to enter into a civil marriage simultaneously?

Answer 2

• The person performing the marriage ceremony is a marriage officer registered under the relevant legislation
• The marriage ceremony itself has been approved by the Department of Home Affairs

Question 3

What religious leaders are marriage officers in the Marriage Act?

Answer 3

The Marriage Act states that religious leaders from Christian, Jewish, Mohammedan (Hindu), Indian, or the rites of any religion may be appointed as marriage officers.

Question 4

What religious leaders are marriage officers in the Civil Union Act?

Answer 4

In the Civil Union Act religious marriage officers can be appointed from any bona fide religion

Question 5

How can a marriage be simultaneously civil and religious?

Answer 5

If they conduct a marriage that complies with the legal requirements, the religious marriage is simultaneously also a civil marriage. Then the legal rules of civil marriage apply to the marriage, irrespective of the rules of the religion.

Question 6

What was determined in Singh v Ramparsad?

Answer 6

In Singh v Ramparsad, the court will only extend the benefits of civil marriage to couples who have concluded and registered a civil marriage, The court argued that the Marriages Act did not discriminate based on religion, as couples should conclude a civil and religious marriage if they wish to be governed by a civil marriage laws.

Question 7

What are the consequences of court proceeding in Religious marriage?

Answer 7

The consequences of court proceedings are that religious marriages want certain civil legal requirements, and the arguments are based on constitutional rights. These rights are extended only as far as the court decisions apply, and there are differences between different religious marriages

Question 8

What are the requirements of a Muslim Sunni marriage contract?

Answer 8

• A marriage contract requires an offer and acceptance by two partners to the marriage and requires agreement on the proposed marriage
• A female who has never been married is required to have her father’s consent and he or someone designated by him acts as her proxy in the marriage ceremony.
• Both parties must have the capacity to enter into a contract of marriage, parties lack the capacity if they are mentally disabled or too young
• Two witnesses must be present

Question 9

What are the requirements of a Muslim Sunni marriage?

Answer 9

• The marriage ceremony can take place either in a gathering of men with neither the bride or any women present, or with women present.
• The marriage ceremony is performed by an imam
• The bride’s proxy is required to obtain her consent prior to the marriage ceremony or on her behalf during the ceremony

Question 10

What is the matrimonial property system of muslim marriages?

Answer 10

Muslim marriages are automatically regarded as out of a community of property without accural

Question 11

How can Muslim marriages be polygynous?

Answer 11

Muslim marriages are polygynous up to a maximum of four wives, only if he can treat them all equally.

Question 12

What is dowry in Muslim marriages?

Answer 12

When parties get married the Husband gives dowry and wedding gifts of agreed value, which must be returned at divorce.

Question 13

What is maintaince in Muslim marriages?

Answer 13

In a Muslim marriage only the husband has to maintain the wife during marriage and post-divorce maintenance is only for the idat period, which is three months after the end of the marriage

Question 14

What are the five ways of obtaining a divorce in a Muslim marriage?

Answer 14

• A talaq by the husband, where he states he divorces the wife three times and doesn’t need a reason to get a divorce and further divorce can be granted by religious authorities
• A talaq by the wife, the wife can terminate the marriage if her husband has delegated this right to her, she can terminate the marriage in the same way as her husband and she may have to forego her right to claim the dower in full
• In divorce by mutual agreement, one of the spouses makes an offer to divorce the other and the other accepts
• Judicial divorce is an action that can be initiated by either spouse.
• Divorce at the instance of the wife, she doesn’t need a reason but must return the dower.

Question 15

What is found in Ismail v Ismail case?

Answer 15

In the Ismail v Ismail in 1983 case the parties had been in a monogamous Muslim marriage with each other before Mr Ismail terminated the marriage through the pronouncement of talaq, Ms Ismail claimed maintenance and her dower due to Islamic law. The court refused to enforce the Muslim marriage contract as it was regarded as contrary to public policy because it is potentially polygynous, even though it was actually monogamous.

Question 16

What are happens to the children in a divorce in a Muslim marriage?

Answer 16

After divorce young children remain with the mother, but later they go to live with the
father

Question 17

What has older cases done to Hindu marriages?

Answer 17

In Hindu marriages in older cases, it was declared that these marriages can be putative marriages and there can be sharing of property in terms of rules for universal partnerships

Question 18

What is held in Ryland v Edros case?

Answer 18

Ryland v Edros the court in 1977 recognised a Muslim marriage as a contract and found that proven terms and customs arising from that contract could be legally enforced. Thus the Muslim wife’s claim for spousal support was awarded, and she was entitled to a consolatory gift and an equitable share of her tangible and intangible contribution to her husband’s estate.

Question 19

What is held in Amod v MMVAF case?

Answer 19

Amod v MMVAF it was held that Mr Amod had been killed in a car accident, Ms Amod brought a claim for compensation. The court was unsure whether or not Ms Amod qualified as a dependent as she had been married in terms of Muslim rites and not civil law. The court held that in terms of Muslim marriage, Mr Amod did have a duty to support his wife, which arose through marriage in faith and that was a duty that deserved legal protection.

Question 20

What is held in Daniels v Campbell case?

Answer 20

Daniels v Campbell, the case concerned the meaning of spouse in two pieces of legislation namely the Intestate Succession Act and the Maintenance of Surviving Spouse Act. Ms Daniels had married her husband in terms of Muslim rites. The Constitutional Court held that the word spouse as used in both statutes included the surviving partner to a monogamous Muslim marriage. The court ordered that the word spouse include the surviving partner in a monogamous Muslim marriage.

Question 21

What is held in the Khan v Khan case?

Answer 21

Khan v Khan the Transvaal Provincial Division recognised a duty of support in a polygynous Muslim marriage for the purpose of the Maintenance Act. It would be unfair discrimination not to recognise a duty of support in polygynous Muslim marriage when this duty has already been recognised in monogamous Muslim marriages. Polygynous marriages are no longer contra bonos mores in the constitutional era

Question 22

What is held in Hassam v Jacobs case?

Answer 22

Hassam v Jacobs, the case concerned the question of whether the rule postulated in the Daniels case could be extended to surviving spouses in polygynous Muslim marriages. The CC held that the intestate Succession Act was unconstitutional as it did not provide relief to surviving spouses in polygynous Muslim marriages.

Question 23

What is held in Mahomed v Mohomed case?

Answer 23

Mahomed v Mahomed stated that the wife was entitled to maintenance pendente in terms of Rule 43 while her matrimonial matter was pending in the civil court

Question 24

What is held in Singh v Ramparsad case?

Answer 24

Singh v Ramparsad stated that a court will not grant a divorce according to the Divorce Act for Hindu marriages, as they are not married as it is also not a civil marriage. However, since the Constitution, the courts have consistently come to the aid of spouse

Question 25

What is rule 43 application?

Answer 25

Rule 43 (pendente lite) is an application that deals with maintenance, children maintenance and care and litigation costs, pending the finalisation of the divorce