Polygamous Muslim marriages recognised for purposes of intestate succession 

In a ground-breaking judgment, Judge Dennis van Reenen, of the Cape High Court, effectively ruled that wives should be treated equally and their rights recognised for purposes of inheritance where the husband does not leave a will. In the case at hand, Fatima Gabie Hassam, second wife of Ebrahim Hassam, lodged a claim against the executor of her husband’s estate and the Minister of Justice after her husband died in August 2001. Johan Jacobs was appointed as the executor of his estate and refused to recognise Hassam’s claims in terms of the Maintenance of Surviving Spouses Act and the Intestate Succession Act. Jacobs’ reasoning was that her marriage was polygamous, and that Hassam could therefore not be treated as a survivor or a spouse. Van Reenen said Hassam would be entitled to the relief if her marriage had been a monogamous one. Denying her a claim would amount to unfair discrimination unless there was justification for limiting these widows’ rights.

This judgment extends the right to inherit from a deceased husband’s estate to women in Muslim marriages where there is more than one wife. The effect of the judgment is that the wives will be treated equally and their rights recognised for purposes of inheritance where the husband does not leave a will. 

In 2004 the Constitutional Court gave the right to inherit to monogamous spouses married in terms of Islamic law so the centre asked the High Court to extend this to polygynous Muslim marriages.

With just under a million Muslim people in South Africa, the judgment will have a profound impact on the community. Research has shown that it is women and children that are predominantly adversely affected by the dissolution of marriage and the protection of women’s property rights on dissolution of marriage, whether by death or divorce, is critical.