We are married, but are you my spouse?

Muslim marriages in general, but polygynous Muslim marriages in particular, currently do not enjoy equal protection under South African law. Whilst waiting for Parliament to enact the Muslim Marriages Bill, the courts, in a litigious piecemeal fashion, have been attempting to address the issues faced by those married in terms of Shari’ah law.

Section 2C(1) of the Wills Act of 1953 recently came under scrutiny from the courts. Section 2C(1) provides that when the descendants and surviving spouse of a deceased are to benefit in terms of a will, and the descendants renounce their right to such benefit, the surviving spouse, by operation of law, will receive the repudiated benefit.

An issue with this section arises when one tries to determine who is to be treated as a ‘surviving spouse’.  This question arose in the case of Moosa NO and Others v Harneker and Others (2017) when a Muslim husband died, leaving behind a Will in which his descendants were named to benefit, and which included the family home. The children agreed to renounce their benefit in terms of the Will. This triggered the operation of Section 2C(1), which meant that the ‘surviving spouse’ was to receive the repudiated benefit. The deceased was married to two Muslim women in terms of Shari’ah law. The deceased, in order to secure a loan from a bank in the 1980s, had subsequently married one of his wives in terms of civil law.

The Executor of the estate reflected the operations of Section 2C(1) in his liquidation and distribution account, namely that each of the two surviving spouses would receive their respective share of the immoveable property, which the Master of the High Court accepted. When the Executor attempted to register the transfer of the family home into the names of both of the wives, the Registrar of Deeds refused to register the transfer of the property into the name of the wife who was not married to the deceased in terms of civil law, but only in terms of Islamic law.

The Registrar of Deeds refused to accept that the wife married in terms of Islamic law was to be considered as a ‘surviving spouse’ in terms of the Act. The Registrar argued that no court had previously decided what was meant by surviving spouse in terms of the Act. The Registrar argued furthermore that that the Act never intended to include surviving spouses of polygynous Muslim marriages in the ambit of the definition. This was because the Act was silent as to who such a ‘surviving spouse’ is, and when it was promulgated the only legally accepted marital union was one concluded in terms of the Marriage Act. The Registrar of Deeds argued therefore that it had not been the intention of Parliament to include surviving spouses of polygynous Muslim marriages in the ambit of ‘surviving spouse’ in terms of the Act.

The Western Cape High Court agreed that at the time the Act came into effect, Parliament would only have intended to protect monogamous marriages as that was the only legally accepted form of marital union. The Court then examined the consequences of the differentiation and exclusion created by this section in terms of the Bill of Rights contained in the Constitution, namely the right to equality. The court found that Section 2C(1) was unconstitutional as it unfairly discriminated against surviving spouses of polygamous Muslim marriages, based on religion and marital status. In order to remedy this constitutional defect, the court read in (inserted) the following words at the end of section 2C (1) – “For purposes of this sub-section, a ‘surviving spouse’ includes every husband and wife of a de facto monogamous and polygynous Muslim marriage solemnised under the religion of Islam”.  It was also ordered that the Registrar of Deeds register the transfer of the property into the names of both of the deceased’s wives. On 29 June 2018 the Constitutional Court handed down a unanimous judgment confirming the earlier ruling of the Western Cape High Court.

For more information regarding Muslim marriages and Estates, please contact:

Rifqah Omar | Partner

E: r.omar@bissets.com

Areas of Expertise: Litigation, Professional Discipline Law, Muslim Personal Law, Curatorship applications and administration, Curatorships, Administration of estates