AN UMHLANGA woman is challenging the legal system as it does not provide equal protection, benefits and recognition to couples who marry via Hindu rites and later divorce, labelling it as an act of discrimination.
The mother of one realised that based on her religion, customs and beliefs, her 2009 betrothal to her former husband, which has now broken down completely, was not recognised by the acts governing marriage and divorce in the country.
Their separation meant she now walks away empty-handed in spite of her contributions to the union whilst with her former partner.
She recently lodged a two-pronged application with the Durban High Court, staking her claim for maintenance costs of her child and herself, for 50% of their joint estate that their marriage yielded.
She is being represented by Advocate Matthew Rudling and attorney Avir Maharaj against her ex-husband and the Ministers of Home Affairs and Justice and Constitutional Development.
The ministries were included as respondents so that the court could grant an order compelling them to take relevant steps to amend clauses in the Marriage Act and Divorce Act and for the respective acts to also cover marriages according to Hindu rites.
She highlighted that the said clauses, as they stood, were of a lob-sided nature because it recognised marriages under Muslim law, even ones conducted by unregistered imams (priests), but not Hindu marriages.
Various sections of the Divorce Act Marriage Act were listed in her court documents, which she deemed “unconstitutional and invalid” as they “unreasonably and unjustifiably” infringed her various rights, which were embedded in the Constitution.
Those rights listed included the supremacy of the Constitution, equality, human dignity, best interests of the child and access to courts.
She juxtaposed the rights and recognition given to Hindu marriages against the rights afforded to civil marriages or unregistered Muslim marriages, presided over by an registered or unregistered priest and their dissolution.
President Cyril Ramaphosa signed an amendment to the Divorce Act into law, which recognised Muslim marriages and safeguarded the interests of women and children of such unions, in the event of a dissolution, in May.
She emphasised that people like her who were married under Hindu rites were also not afforded the opportunity to enjoy the benefit and dignity of dissolving their unions via the courts as others.
“I am deprived of the full and equal enjoyment of all rights and freedoms enjoyed by others in terms of the Marriage Act, especially persons married by way of a Muslim marriage, which has not been registered as a civil marriage.
“The State has directly or indirectly discriminated against persons married in a Hindu marriage by excluding them from the provisions of the Divorce Act.”
She said those stances were “arbitrary and irrational”.
It concerned her that there were no safeguards for the rights of dependent minor children born out of Hindu marriages.
Also, there were no provisions in place for the redistribution of assets for dissolved Hindu unions.
Upon marriage the couple agreed to cohabitation and having a joint estate, to provide for their livelihood and their comfort, and any profits arising from their union would be divided equally between them.
She said her marriage collapsed over irreconcilable differences and claimed her husband had an alcohol dependence and was abusive towards her.
During their time together she said she contributed money, resources, skills and labour for their joint benefit.
She also tended to their household and child, at the behest of her husband.
There was a time when she contributed income, but was unable to continue due to the time consuming nature of her responsibilities.
Therefore, the husband provided financial support for various monthly expenses.
The wife was not aware of the full extent and nature of assets of their universal partnership and does not “trust” her former partner would effect a fair and equitable division thereof.
She requested an order declaring that a universal partnership existed between them, and its dissolution be effective from when she served summons in this action, in August.
The self-employed woman required maintenance of R20 000 for herself and R11 700 for the child per month, and a liquidator be appointed to determine and divide equally assets that stemmed from the partnership.
She asked that he various clauses on marriage and divorce be amended by the lawmakers and widely publicised thereafter.
The Department of Home Affairs, the Department of Justice and Constitutional Development and husband were yet to file their responses.