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South Africa: Court Finds Law Discriminating Against Muslim Widows Unacceptable

(July 21, 2009) On July 15, 2009, the South African Constitutional Court unanimously ruled to allow all widows of a polygamous marriage contracted under Muslim rites to make a claim against the estate of a deceased husband in an intestate succession. (Ernest Mabuza, Court Rules in Favor of Muslim Widows, BUSINESSDAY, July 16, 2009, available at The decision changes the Intestate Succession Act, which recognized only one spouse of a polygamous Muslim marriage (the first wife) and disqualified other widowed spouses of such a marriage from making a claim against the estate of a deceased husband. (Intestate Succession Act 81 of 1987 s. 1.)

The Court stated that intestate succession, in recognizing only one spouse, differentiated between widows married under the Marriage Act and those married under the Muslim rites, between widows in monogamous Muslim marriages and those in polygamous Muslim marriages, and between widows in polygamous customary law marriages and those in polygamous Muslim marriages. The Court ruled to change the Intestate Succession Act to recognize more than one spouse by adding the term “or spouses” after every use of the term “spouse.” In addition, the Court held that each surviving spouse should be allowed to claim a child's share of the estate (which, according to the Intestate Succession Act, means that the estate would be equally divided among all children and spouses equally). (Mabuza, supra.)

Bess Nkabinda, the justice who delivered the Court's opinion in the case, stated: “[t]he act works to the detriment of Muslim women and not Muslim men.” She explained that, “[b]y discriminating against women in polygamous marriages on the ground 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.” (Mabuza, supra.)