Protection afforded to spouses married in terms of Islamic law

On Friday 29 June 2018, the Constitutional Court handed down judgment concerning section 2C(1) of the Wills Act, and declared it constitutionally invalid.

In this case, the deceased married his first wife in 1957 in terms of Islamic law. He thereafter married his second wife in 1964, also in terms of Islamic law. The deceased formalised his marriage to his first wife in 1982. This was done with the consent of his second wife.

Below is a diagram depicting the deceased’s two marriages.

The deceased had prepared a will, which left inheritance to both wives and all the children. However, the children chose not to accept their inheritance. In terms of section 2C(1) of the Wills Act, where a descendant (child of the deceased) and a surviving spouse are both entitled to a benefit, and the descendant does not accept a benefit, the benefit shall vest in the surviving spouse. The key issue of the case was what is meant by a surviving spouse.

The executor was of the view that the remaining balance in the estate which was originally to have been inherited by the children should be shared between the first wife and the second wife. The Master accepted this. However, the Registrar of Deeds did not hold this view, as he believed that the term “surviving spouse” in section 2C(1) of the Wills Act refers to a spouse formally recognised in terms of South African law. According to the Registrar of Deeds, because the second wife was married in terms of Islamic law, she could not receive a share of the property owned by the deceased. She was accordingly not considered as a “surviving spouse” for purposes of section 2C(1).

In the High Court, it was held that section 2C(1) unfairly discriminated against the second wife simply  because she was married to the deceased in terms of Islamic law and not in terms of South African law.

The Constitutional Court agreed that section 2C(1) violated the second wife’s right to equality. It further held that it infringed her dignity, as it stigmatised her marriage and increased her vulnerability simply because she was married in terms of Islamic law.

The Constitutional Court therefore ordered that section 2C(1) is constitutionally invalid. It further ordered that the term “surviving spouse” in section 2C(1) “includes every husband and wife of a monogamous and polygamous Muslim marriage solemnised under the religion of Islam.”

Accordingly, where spouses are entitled to benefits in terms of section 2C(1) of the Wills Act, there will be no distinction drawn between spouses married under Islamic law and spouses married in terms of a registered union under South African law.

It should be noted that the declaration of invalidity operates retrospectively with effect from 27 April 1994. However, this operation is limited, in that it does not affect the validity of estates that have already been finalised.

Mohammed Motala                                                                                  Imraan Chohan 

Director                                                                                                             Attorney

Tel: (033) 3553100                                                                                         Tel: (033) 3553100

Email: Mohammed@venns.co.za                                                           Email: Imraan@venns.co.za