Religion and Polygamy in South Africa: All Relationships are Equal but Some are More Equal than Others

Abstract

Muslim marriages are not recognised as valid marriages in South African law on the ground that such unions are potentially polygamous. Nevertheless, in two recent cases dealing with intestate succession and claims for maintenance against the estate of a deceased spouse, the Constitutional Court of South Africa held that widows of Muslim unions, whether monogamous or polygamous, are entitled to the protection of the relevant legislation. The Court has also extended legislative benefits enjoyed by the married to same-sex life-partners. Although it might therefore seem as though the Court has embraced a functional approach to family law, I argue that there is a significant mismatch between the Court’s functional rhetoric and a reality of exclusion. I show that the Court’s approach is both marriage-centric and that it arbitrarily privileges religious unions. The Court extended the benefits of marriage to religious unions not because of their functional similarity to marriages but because it was prepared to expand the concept of ‘marriage’ on a one-off basis to cover them. And it extended the benefits of marriage to same-sex partners because they were not allowed to marry. Now that legislation has been enacted allowing same-sex partners to marry, the Court has suggested that Parliament might legitimately take away the rights of same-sex partners who do not avail themselves of the opportunity to marry. Along similar lines, it has found that the exclusion of survivors of heterosexual life-partnerships from the benefits of the Maintenance of Surviving Spouses Act is not unfairly discriminatory because there is no legal impediment to the marriage of the partners. Overall, the impression is of a Court that regards it as legitimate for the legislature to discriminate against informal partnerships for moralistic reasons, except in the case of religious unions, for which it makes an arbitrary exception. It adds its own blessing to such unions, regarding them as ‘marriages’.