All surviving spouses married under Muslim law now recognised in Wills Act

29 June 2018 - 13:02 By Ernest Mabuza
The Wills Act failed to recognise the right of a surviving spouse in a polygamous Muslim marriage.
The Wills Act failed to recognise the right of a surviving spouse in a polygamous Muslim marriage.
Image: 123RF/Sebnem Ragiboglu

In a victory for Muslim women married in polygamous marriages‚ the Constitutional Court confirmed that a section in the Wills Act was unconstitutional.

The section failed to recognise the right of a surviving spouse in a polygamous Muslim marriage to the benefits of her deceased husband’s will.

The Constitutional Court confirmed the order made by the High Court in Cape Town last year‚ which declared section 2C(1) of the Wills Act invalid.

The Constitutional Court said the section should be read as including the following words:

“For the purposes of this sub-section‚ a ‘surviving spouse’ includes every husband and wife of a monogamous and polygamous Muslim marriage solemnised under the religion of Islam.”

In this case‚ Osman Harneker - who died in 2014 - married his first wife Amina Harneker in 1957 and his second wife Farieda Harneker in 1964 under Islamic law.

He married his first wife under South African law in 1982‚ following advice he received so that he could obtain a bank loan to purchase the family home. This was because Muslim marriages were not legally recognised in South Africa.

The deed of transfer only referred to himself and his first wife. In his last will prepared in 2011‚ Harneker had referred to both his marriages.

The executor of the estate‚ Fareeda Moosa‚ said all children renounced the benefits due to them under the will.

Section 2C(1) of the Wills Act entitled a “surviving spouse” to the benefit of a will if the descendants of the person who has made the will renounce their right to it.

Acting in terms of this section‚ Moosa regarded both wives as surviving spouses and recorded that both spouses would receive equal benefits. The Master of the High Court accepted the calculation.

However‚ when the executor sought to register the deceased’s half share in the family property‚ the Registrar of Deeds only approved the registration for the first wife.

He declined to register the second wife’s share saying the term “surviving spouse” in section 2C(1) should be interpreted strictly to cover spouses formally recognised under the country’s laws.

The executor challenged the validity of this section in the high court.

The High Court in Cape Town agreed last year and declared that the section was unconstitutional as it violated Farieda Harneker’s right to equality and dignity.

For any section that has been declared unconstitutional by the lower courts‚ the ruling has to be confirmed by the Constitutional Court. In its judgment on Friday‚ the Constitutional Court agreed with the High Court’s order.

The court said the section’s failure to treat Farieda Harneker as a surviving spouse and its denial of her right to inherit from her deceased husband’s will struck at the very heart of her marriage of 50 years‚ her position in her family and her standing in her community.

“Its effect is to stigmatise her marriage‚ diminish her self-worth and increase her feeling of vulnerability as a Muslim woman‚” acting justice Azhar Cachalia said in a unanimous judgment.

The order of invalidity would operate from April 27, 1994‚ except where the transfer of ownership had been finalised before the court’s judgment.

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