Legal Articles

In Hindu marriages, a spouse can enjoy the same rights as other couples who have registered their marriage in terms of the South African law.

However, not all Hindu marriages are recognised by the South African law, and this can lead to serious complications when one spouse dies.

Hindu marriages

Even if a couple enjoys a monogamous marriage in accordance with the rights, customs and traditions of the Hindu religion, if their marriage is not registered in terms of the Marriage Act No.25 of 1961, when one spouse passes away the surviving partner will not be able to inherit property and assets from the deceased partner.

In 2004, the Govenders got married according to the rites and customs of the Hindu religion. They were committed to each other, in a monogamous union that they considered binding and duly respected.

Shortly after the couple had gotten married, Mr Govender passed away, without leaving a will. This led to the executor of Mr Govender's estate preparing the estate account on the basis that his mother and father were the sole heirs.

Mrs Govender then applied to court for an order that the word "spouse" in the Intestate Succession Act 81 of 1987 (the Act) includes the surviving partner to a monogamous Hindu marriage.

The application was opposed by Mr Govender's parents, who would stand to inherit the estate in its entirety, in equal shares. However, if Mrs Govender was successful in the relief she sought, she would inherit the entire estate in terms of the Act, which states that where the deceased leaves a surviving spouse and no descendants, that spouse becomes the sole heir.

The Intestate Succession Act was extended by the Constitutional Court to cover the following:

• Partners in a permanent same-sex life partnership in which the partners have undertaken the reciprocal duties of support.
• Intestate deceased estates that would formerly have been covered by section 23 of the Black Administration Act No.38 of 1927.
• The surviving partner to a monogamous Muslim marriage.

However, to date, no challenge had been brought in respect of couples in Hindu marriages, as they continue to be excluded from the provisions of the Intestate Succession Act.

Even if the union had all the essential attributes of a South African marriage - which is a voluntary union for life with one man and one woman to the exclusion of others - a Hindu marriage which has not been registered in terms of the South African law is seen as invalid in the eyes of the courts.

However, in the case of Govender vs Ragavayah, the validity of the marriage was not required for the relief that the applicant sought in her Notice of Motion. And in the end, the court concluded that the relief be granted to the applicant. The court also made an order that:

• The word ‘spouse’ as used in Section 1 of the Intestate Succession Act 81 of 1987 includes the surviving partner to a monogamous Hindu marriage.
• The applicant was declared for the purposes of Section 1 of the Intestate Succession Act 81 of 1987, to be a ‘spouse’ of the deceased.

If you find yourself in the same situation as Mrs Govender, feel free to contact Van Deventer and Van Deventer Incorporated - the preferred attorneys in Johannesburg.