Muslim widows can now inherit

2004-03-11 19:11

Johannesburg - The Constitutional Court on Thursday retrospectively recognised Muslim marriages for purposes of intestate succession.

"The effect of the order is that husbands and wives who are married in terms of Muslim rites in a monogamous marriage may inherit - where their spouse dies without a will - and claim maintenance from their spouses' deceased estates," Women's Legal Centre lawyer Michelle O'Sullivan said.

"Previously, they were excluded from the protection afforded by law. The decision has retrospective effect and will apply to existing deceased estates. This means that spouses in this position should now institute maintenance claims and ensure that they receive their share of intestate estates," O'Sullivan added.

O'Sullivan represented Cape Town domestic worker Juleiga Daniels in the case.

The Constitutional Court on Thursday ruled that both the 1987 Intestate Succession Act and the 1990 Maintenance of Surviving Spouses Act afforded protection to the surviving partners of monogamous Muslim marriages.

Daniels had married by Muslim rites in 1977.

The marriage was not solemnised by a marriage officer appointed in terms of the Marriage Act of 1961 and her husband died in 1994.

No children were born of the marriage, though both had children from previous marriages.

Since her husband had left no will, the estate was to be wound up intestate. This usually means that the surviving spouse inherits.

But Daniels was told by the Master of the High Court that she could not inherit because she had been married in terms of Muslim rites and therefore was not a "surviving spouse".

A claim for maintenance against the estate was rejected on the same basis.

- SAPA