09 Nov

“Surviving spouses” in Polygamous Muslim Marriages

In terms of the provisions of the Wills Act of 1953, surviving spouses in Polygynous Muslim Marriages were not afforded the same rights and protection as those afforded to surviving spouses married under the Marriage Act and the Civil Union Act.

As the Muslim Marriages Bill has not yet been passed there has still been much uncertainty as to where these spouses stand. Thankfully however a recent court decision has pushed spouses in Muslim marriages one step closer to obtaining full legal protection.

Case Law:

In the case of Moosa NO and other v Harnaker and others (400/2017) the rights of widows in Polygynous Muslim Marriages, or the lack thereof in terms of the Wills Act, was challenged and found to be unjust and unconstitutional.

In this case, the deceased had two wives and 9 children. Both marriages had been conducted according to Muslim rites, but only the first marriage had been registered in terms of Civil Law. The deceased left an Islamic will, allocating the shares of his estate to his children and two wives.

The deceased’s children repudiated their share of the inheritance in favour of their mothers, and the executor opted to rely on section 2C(1) of the Wills Act with regards to the renunciation.

The Deeds Office however refused to register a portion of the house under the name of the wife who was married only in terms of Muslim rites based on the grounds that a Muslim spouse is not a “surviving spouse” in terms of section 2C(1) of the Wills Act.

The court held that:

The exclusion of surviving spouses in Polygynous Muslim Marriages from section 2C(1) of the Wills Act was unconstitutional and unjust and for the purposes of section 2C(1) of the Wills Act, a surviving spouse now includes every husband and wife of a monogamous and polygynous Muslim Marriage.

The good news:

Surviving spouses in Muslim marriages no longer have to fight for the rights which they are entitled to according to Shariah Law or Islam.

Whether there is one spouse or three, they will all be recognized as surviving spouses in terms of the Wills Act. There will no longer be any differentiation between a ‘surviving spouse’ married according to Muslim Rights and those married according to Civil Rights in terms of inheritance. All the spouses will be entitled to the same rights and protection afforded to civil spouses and are allowed to inherit from their deceased spouse’s estate equally.

Kind Regards
Farzanah Mugjenkar
Miltons Matsemela Inc.