25 Oct. 13
The Women’s Legal Centre (WLC) welcomes the judgement handed down today by Western Cape High Court in a matter relating to Muslim marriages. In this case, the State’s failure to ensure adequate procedures and regulations for the just administration for surviving spouses of Muslim Marriages was addressed.
The WLC brought a review application on behalf of the applicant against the Master of the High court and the Minister of Justice and Constitutional Development. The applicant was married in terms of Islamic law and 2 children were born in the marriage. When the husband died without a will in 2010, the applicant and her two minor children were left destitute after being forcefully and unlawfully removed from the marital home with by the deceased’s family members.
The applicant encountered great difficulty in proving that she was in fact a spouse at the time of the death of her husband as there are no regulations or procedures in place to provide any guidance as to the administrative process of the registration and dissolutions of marriages entered in terms of Islam.
Today, the applicant was recognised as the legal spouse, and the executor was removed with no entitlement to remuneration.
“It has been 12 years that women have been bringing these cases to courts. The passing of the Muslim Marriages Bill is long overdue, and it is, more often than not, women and children who suffer due to the state’s failure to pass the law” says Jennifer Williams – director at the WLC.
Currently, there is no legislation that recognises marriages concluded according to Muslim rites in South Africa. However, these marriages have been accorded some recognition in the courts, particularly in the area of intestate succession. In terms of the Maintenance for Surviving Spouses Act 27 of 1990 and Intestate Succession Act 81 of 1987 parties to a monogamous and polygamous Muslim marriage are entitled to inherit from their deceased spouse’s estate.
“Religious bodies are often used as proof of marriage. This judgement is a step forward in having Muslim Marriages legally recognised” says Williams.
The court has ordered the state to report on the progress made regarding the Muslim Marriages Bill by August 2014.