POLYGAMOUS MUSLIM MARRIAGES NOW PROTECTED IN THE WILLS ACT

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Section 2C(1) of the Wills Act provides that when a descendant of a testator who renounces the benefit he is entitled to receive in terms of a will, the benefit would vest in the surviving spouse. This created a probem for surviving spouses married in terms of a religious polygamous marriage in terms of Islamic rites, as it could only vest in one surviving spouse and created inequality.

In a unanimous judgment on 29 June 2018, the Constitutional Court confirmed the Cape Town High Court’s order of constitutional invalidity of that section, ordering that when now reading the section the following words were to be considered to have been inserted:

“For the purposes of this sub-section, a ‘surviving spouse’ includes every husband and wife of a monogamous and polygamous Muslim marriage solemnised under the religion of Islam.”

This is considered to have been in effect since 27 April 1994, unless any transfer of ownership in property had already been finalised before the date of the judgment where there is no similar legal challenge. This was a substantive step forward towards protecting surviving spouses of marriages who enter into a Muslim marriage due to their religious views.

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