ALL the widows of a polygynous Muslim marriage — entered into under Muslim personal law — will be entitled to claim from the estate of a husband who dies without leaving a will, the Constitutional Court ruled yesterday.

Previously, the Intestate Succession Act recognised only one spouse, making it difficult for all the widows in a polygynous marriage to make a claim.

A polygynous marriage is one in which a man has more than one wife, whereas polygamy can apply to a marriage which involves more than one wife or husband.

Fatima Hassam approached the Constitutional Court last year to order the executor of her deceased’s husband’s estate to recognise her marriage. Hassam was married to her late husband Ebrahim Hassam under religious Muslim law.

Ebrahim Hassam married a second wife according to Muslim rites, but without Fatima Hassam’s consent. The man died in 2001 without leaving a will.

The executor of his estate refused to allow Fatima Hassam’s claim as a spouse under the Intestate Succession Act.

Last July the Western Cape High Court, Cape Town, declared that section 1(4)(f) of the act was inconsistent with the constitution to the extent that it made provision for only one spouse in a Muslim marriage to be an heir in the intestate estate of their deceased husband. An order of constitutional invalidity has no force until it is confirmed by the Constitutional Court.

The Constitutional Court also ruled that the act should be read as though the words “or spouses” appeared after the word “spouse” wherever it appeared in section 1 of the act. It also ruled that each surviving spouse should inherit a child’s share of the estate, and ordered the minister of justice to pay Fatima Hassam’s costs in the high court and the Constitutional Court.

In her judgment, in which all the 10 other judges concurred, Judge Bess Nkabinde said the Intestate Succession Act differentiated between widows married under the Marriage Act and those married by Muslim rites.

She said the act also differentiated between widows in monogamous Muslim marriages and those in polygynous Muslim marriages, and between widows in polygynous customary law marriages and those in polygynous Muslim marriages.

“The act works to the detriment of Muslim women and not Muslim men,” Nkabinde wrote in her judgment. She said the effect of the failure to afford the benefits of the act to widows of polygynous Muslim marriages would generally cause widows significant and material disadvantage.

“By discriminating against women in polygynous Muslim marriages on the grounds of religion, gender and marital status, the act clearly reinforces a pattern of stereotyping and patriarchal practices that relegates women in these marriages to being unworthy of protection.”

Nkabinde said the case was not about the constitutional validity of polygynous marriages entered into in accordance with Muslim rites and the judgment did not incorporate any aspect of Sharia law into South African law.

She said marriage was an important social institution to all members of society. The significance attached to polygynous unions solemnised in accordance with the Muslim faith was no less significant than a civil marriage or an African customary marriage.

The Women’s Legal Centre Trust, which acted as friends of the court, said the judgment was a step in the right direction. “This confirmation of constitutional invalidity of legislation, which marginalises a class of women, reflects the necessity that the legislature and the judiciary must only look to the constitution for guidance and uphold its supremacy,” said Hoodah Abrahams-Fayker. With Sapa mabuzae@bdfm.co.za

Source: http://www.businessday.co.za/articles/Content.aspx?id=75894