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South Africa: Court to Rule On Muslim Polygamous Marriages
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Business Day (Johannesburg)
14 May 2008
Posted to the web 14 May 2008
Chantelle Benjamin
Johannesburg
THE Cape High Court is to decide on a case which could have serious implications for the Muslim community, namely whether polygamous Muslim marriages should be recognised under South African law.
As the law stands now, polygamous African customary marriages are recognised, but religious marriages still enjoy no such protection -- leaving many women from these marriages destitute when their husband dies without a will.
Jennifer Williams of the Women's Legal Centre said yesterday the case involving a second wife, Gabie Hassam, would affect a number of Muslim women living in SA.
Nearly a million Muslims live in SA, 45% of them in Western Cape, and more than 400 Muslim divorces are lodged a year. Pressure is now being placed on the courts to extend the same rights to Muslim women as those enjoyed by women married in terms of the Marriage Act and c ustomary l aws.
Hassam approached the court to order the executor of her deceased husband's estate to recognise her marriage. The executor had refused to consider her claim as she was the deceased's second wife and married under religious Muslim law. Her application is not being opposed by the first wife. Judgment has been reserved.
These marriages enjoy no legal recognition and consequently, unless stipulated in a will, the women and children of these marriages lose out on the right to inheritance.
The Constitutional Court recently extended the right to inherit to spouses married in monogamous Muslim marriages after another case was brought by the Women's Legal Centre.
The Constitutional Court judgment was made by Judge Dikgang Moseneke.
"The importance of an order in Mrs Hassam's favour is that a class of women will be economically and socially empowered," said Williams. "They would have access to assets acquired in an unrecognised marriage relationship, which they have actually contributed towards acquiring, whether by their own employment or bringing up the children and maintaining the home."
She said the case has been well received by the Cape Muslim community which wants resolution on the issue.
Children of second marriages can claim under the Maintenance Act, but still tend to be disadvantaged if their mother becomes destitute and loses her home, as it affects her ability to care for the children, said Williams.
"Research has shown it is the women and children who are predominantly adversely affected by dissolution of marriage and so the protection of women's property rights on dissolution of marriage, whether by death or divorce is critical," she said.
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Williams attributes the slow pace of law reform with regard to Muslim personal law to Hassam's situation.
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