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| in short |

| polygynous widows can now claim under intestate |

 

The Constitutional Court has recently confirmed a welcome legislative development in favour of women married under Muslim law and more specifically where the marriage is polygynous in nature; that is where more than one wife is party to the marriage.

 

Previously, polygynous Muslim marriages were not legally recognised under South African law. Thus, where a spouse passed away without leaving a will, his wives would be unable to claim from the deceased estate as they did not fall within the definition of “spouse” for the purposes of the Intestate Succession Act, 81 of 1987 and the Maintenance of Surviving Spouses Act, 27 of 1990.

 

In the case at hand Mrs Fatima Gabie Hassam was unsuccessful in lodging a claim with the executor of her deceased husband’s estate. Her claims were refused by the executor on the basis that polygynous Muslim marriages were not legally recognized.

 

As such, Mrs Hassam applied to the Western Cape High Court challenging the validity of certain provisions of the Intestate Succession Act and Maintenance of Surviving Spouses Act on the grounds that they unfairly exclude widows in polygynous Muslim marriages from the legislative protection afforded to other “spouse(s)” and “survivor(s)” who found themselves widowed.

 

In following, the High Court declared the definitions of spouse and survivor in the respective Acts inconsistent with the Constitution to the extent that they make provision for only one spouse in a Muslim marriage to be an heir.

 

The Honourable Justice Nkabinde of the Constitutional Court held that the current definitions unfairly discriminate against spouses of polygynous marriages on the grounds of religion, martial status and gender. To remedy the defect the words “or spouses” are to be read-in after each use of the word “spouse” in the aforementioned legislation.

 

 

 

 

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