Cape Town - A Western Cape High Court judge has declared the Wills Act inconsistent with the constitution, as it only recognises legal marriages and not Muslim
This comes in the wake of a highly publicised Muslim Marriages’ legal dispute. Judge Andre le Grange made the declaration order after a woman married under Muslim law was denied a share of her late husband’s inheritance by the Registrar of Deeds office.
Farieda Harneker, a third wife of Osman Harneker, was in a polygamous Muslim marriage while the deceased marriage to the second wife was under civil union. According to the deeds office, the second wife’s marriage was protected in terms of the civil marriages and
she was therefore regarded as the “surviving spouse”.
The Wills Act therefore did not include those married under Islamic Law. Harneker’s lawyer and executor of her husband’s will, Fareed Moosa, argued that widows in polygamous Muslim Marriages were discriminated against in respect of “surviving spouse”.
He said Harneker’s marriage to the deceased was fully recognised under Islamic Law and in terms of the Constitution.
“Harkerner’s marriage to the deceased could not be less significant than that of a civil marriage under the Marriages Act or an African customary marriage. Similarly, the dignity of parties to a Muslim polygamous marriage cannot be less,” Moosa argued.
The Womens Legal Centre (WLC) was approached as friends of the court.
Director of the WLC Seeham Samaai said in the absence of proper legislature to recognise Muslim Marriages and its proprietary consequences; women in these marriages suffer hardships.
Le Grange ordered the Wills Act be declared inconsistent with the Constitution and invalid only to an extent.
“For purposes of this, a “surviving spouse” includes every husband and wife of a married monogamous and polygamous Muslim Marriage solemnised under the religion of Islam,” said Le Grange.
He ordered that Harneker be declared a “surviving spouse” and that the deeds office lists Harneker as a joint owner of the Cape Town home.