The Constitutional Court has confirmed a Western Cape High Court ruling that upheld the rights of wives in polygamous Muslim marriages.
The case involved a man who married two wives under the tenets of Islamic law, but secured a bank loan for a house with the deed of transfer only recognising one wife, Amina, with whom his marriage was legally formalised. His other wife, Farieda, was aware of this arrangement and consented to it.
When the husband passed away in 2014, the family’s estate executor maintained that the husband’s estate would be shared equally between Amina and Farieda (all of their children renounced any benefits), which is in accordance with South African law; more specifically, the Wills Act.
Initially, the Deeds Registrar didn’t recognise Farieda as a “surviving spouse”, because the law only covers spouses who are formally recognised. Thus, the estate executor and the spouses took the Registrar and the Justice Minister to court.
The official court papers state: “The applicants applied to the High Court for an order declaring that section 2C(1) of the Wills Act is inconsistent with the constitution and invalid for its failure to apply to surviving spouses in polygamous marriages in terms of the tenets of Islamic laws,” the court papers read. The applicants submitted that this interpretation of the section adopted by the second respondent violated the third applicant’s rights to equality and dignity.”
In addition to ruling in favour of the applicants, the Constitutional Court has also ordered that the Wills Act be amended and that “surviving spouse”, must now include “every husband and wife of a monogamous and polygamous Muslim marriage solemnised under the religion of Islam”.
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