Con Court recognizes surviving spouses in Muslim marriages

In South Africa, there is currently no legislation which recognises and regulates Muslim marriages. This lack of legal recognition for Muslim marriages solemnised under the doctrines of Islamic Law leaves spouses to these marriages vulnerable and without the protection and automatic rights otherwise afforded to those spouses who are marriages are legally recognised and officially registered under South African legislation.

Currently, South African law only allows for the formal registration of a marriage solemnised and registered in terms of either the Marriages Act 25 of 1961, the Civil Union Act 17 of 2006 and the Recognition of Customary Marriages Act 130 of 1998, none of which make provision for the registration of Muslim marriages.

A surviving spouse in a Muslim marriage was, until recently, not included in the definition of a “surviving spouse” for the purposes of the benefits provided for the Wills Act 7 of 1953.

The struggle of spouses in Muslim marriages was however recently recognised by the High Court of South Africa, which recognition was confirmed by the Constitutional Court in the case of Moosa and Others v Minister of Justice and Correctional Services and Others 2018 [2018] ZACC 19 (29 June 2018).

In this matter, the deceased was married to two women (the second and third applicant) under the tenets of Islamic Law. The deceased married the second applicant in 1957, followed by his marriage to the third applicant in 1964.

In 1982 after having been advised to do so in order to qualify for a bank loan to fund the purchase of the family home and with the consent of the third applicant, the deceased formalised his marriage to the second applicant in terms of South African law.

The deceased then lived together with his two wives and some of their nine children in the family home until his death in 2014.

Upon his death, the deceased’s children renounced the benefits bequeathed to them in terms of his will. In this instance, section 2C(1) of the Wills Act entitles a “surviving spouse” to receive the benefits renounced by the testator’s descendants.

After having adopted a strict approach to the interpretation of “surviving spouse”, the Registrar of Deeds declined to approve the registration of a portion of the deceased’s share in the family home in favour of the third applicant.

After having considered the past experiences of Muslim women in South Africa, South Africa’s obligations in terms of international law as well as the third applicant’s rights to equality and dignity, the Constitutional Court confirmed that section 2C(1) of the Wills Act was unconstitutional and invalid in that it unfairly discriminates against the third applicant on grounds of her religion and marital status and by failing to recognise her as a “surviving spouse” directly infringes on her right to dignity in a most fundamental way.

The Constitutional Court then went on to grant the order in favour of the applicants and amend section 2C(1) to include every husband and wife of a monogamous and polygamous Muslim marriage solemnised under the religion of Islam in the definition of “surviving spouse” for the purposes of section 2C(1) of the Wills Act.


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