Why can't spouses married under Muslim rites claim deceased funds?

The long answer

I am very sorry to tell you that it is true that marriages under Muslim rites have not been recognised legally in South Africa up to now; there has been a shocking delay in making law to legally recognise Muslim marriages. There has been some limited recognition, which means that spouses are able to claim maintenance from a deceased estate and inherit from a deceased intestate estate. (An intestate estate is when the person dies without leaving a will. In that case, the Intestate Succession Act applies. This means that blood relatives inherit in the following order: first spouses, then descendants – children.)

In 2018 the Women’s Legal Centre Trust brought a case against the President and the Minister of Justice for failing to fulfil their constitutional duty to recognise marriages under Muslim rites as legal. The Western Cape High Court found that the state had a constitutional duty to recognise Muslim marriages and had failed in its constitutional duty. The state appealed this judgement and the Supreme Court of Appeal (SCA) confirmed the judgement in 2020 and ordered the President and Cabinet to make law governing the Islamic marriage regime within 24 months of the judgement. The SCA also ruled that all Muslim marriages are out of community of property, excluding the accrual system.

The SCA judgement found that, “The non-recognition of Muslim marriages is a travesty and a violation of the constitutional rights of women and children, in particular, including their right to dignity, to be free from unfair discrimination, their right to equality and to access to court. Appropriate recognition and regulation of Muslim marriages will afford protection and bring an end to the systematic and pervasive unfair discrimination, stigmatisation and marginalisation experienced by parties to Muslim marriages including, the most vulnerable, women and children.”

The Women’s Legal Centre Trust went to the Constitutional Court to confirm that the state must amend the law as ordered by the SCA. The state is not opposing the confirmation application, but said it must be limited to Muslim marriages terminated either by death or divorce before the date of the order. The Constitutional Court has reserved judgement.

I’m not sure why the lady at the Labour department said you should submit a new application in 2023, but it may be that that is when the new laws will be in place if the Constitutional Court confirms that the state must enact new legislation to recognise Muslim marriages.

Perhaps you could get advice on what you can do about this from the same organisation that brought the court case in 2018, The Women’s Legal Centre Trust. These are their contact details:

Cape Town Office:

2nd floor, 5 St George’s Mall, Cape Town.

Helpdesk: info@wlce.co.za

Tel: 079 421 8197

Wishing you the best,
Athalie