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ADVOCATE FATIMAH ESSOP
A MUSLIM marriage concluded by nikah only can be dissolved by death or divorce. In this issue, I will only focus on dissolution by death and its implications in both Islamic law and South African law.
If a couple was married by nikah only then, on the death of either of them, their death certificate will reflect their marital status as unmarried or never married. The reason for this is that the State has no record of Muslim marriages as they are not recognised as valid marriages and have never been registered as such.
It is therefore important that when reporting the deceased estate to the Master’s office that the surviving spouse produces her or his Muslim marriage certificate to prove that she or he is the surviving spouse.
When anybody dies in South Africa, they normally die testate or intestate. By testate is meant that the deceased has drawn up a will and that his or her estate will be distributed according to a will.
Intestate means that the deceased has not drawn up a will and hence his or her estate will be distributed according to the South African intestate laws, which are set out in the Intestate Succession Act 81 of 1987.
South African law adheres to the principle of freedom of testation, which means that if you draw up a will, you can leave your estate to whomever you please. So, if you decide to leave your entire estate to your gardener, in your will, then this is a perfectly valid disposition in terms of South African law.
However, if a testator excludes his or her spouse in his or her will then the surviving spouse/s, whether married by civil law or Islamic law, can put in a claim for maintenance against the estate of the deceased, in terms of the Maintenance of Surviving Spouse Act 27 of 1990.
Many South African Muslims incorporate the shariah into their wills and stipulate that the Islamic laws of inheritance should apply to their estates on their death.
In that scenario, on the death of the testator, a certificate is usually obtained from a recognised Muslim judicial body setting out the heirs of the testator as well as the portions they are entitled to.
In terms of the Islamic laws of inheritance, the surviving wife (the widow) will get a ¼ of the net estate if the deceased had no children or 1/8th if the deceased did have children.
If there was more than one wife married to the deceased by nikah then those wives have to share the 1/8th. A widower is entitled to ½ of the net estate if his deceased wife had no children and ¼ if she did have children (Quran 4:12).
Before inheritance shares can be distributed, the legacies (wasiyyah) and debt (dain) must first be paid out of the deceased estate, and the balance will then be distributed to the shariah heirs (Quran 4:12).
If the husband is the deceased and the wife had a deferred dowry that was not yet paid then that deferred dower would be a debt against the deceased estate in terms of the Islamic laws of inheritance.
In Islamic law, such a debt does not prescribe and should be settled from the deceased’s estate. However, in terms of South African law, a contractual debt extinguishes after three years from the date when it became due. Hence, depending on the wording of the deferred dowry provision in the Muslim marriage contract, it may or may not be enforceable as a debt against the deceased husband’s estate in terms of South African law.
If you do not draw up a will then the Islamic law of inheritance will not apply to your estate and the Intestate Succession Act will apply to your estate.
In the past, Muslim spouses who were married by nikah only were not entitled to inherit in terms of the Intestate Succession Act as a result of Muslim marriages not being recognised as valid.
However, as a result of constitutional law cases, the Act now applies to spouses in Muslim marriages, too. The Act stipulates that if the deceased had no descendants then the surviving spouse/s will inherit the entire estate.
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If the deceased did have descendants then the surviving spouse will inherit R250 000 or a child’s share, whichever is greater, and the children will inherit the balance of the estate.
A child’s share is calculated by dividing the intestate estate through the number of surviving children of the deceased plus the number of spouses who have survived such deceased.
If there are more than one wife married to the deceased by nikah then each wife will inherit R250 000 or a child’s share.
However, if the deceased had been married to one wife by civil law in community of property and to the other wife by Islamic law only then the civil law wife will first be entitled to her half of the joint estate she shared with the deceased.
The remaining half of the joint estate will then be distributed amongst the deceased’s intestate heirs, which will include both wives, according to the shares set out in the Intestate Succession Act.
If you do not wish to have your estate devolve according to South African intestate laws then it is best to have a will drawn up professionally, which clearly encapsulates exactly how you wish your estate to be distributed on your demise.
Advocate Fatimah Essop has a degree in Islamic Law and Arabic from International Peace College South Africa (IPSA) and is currently a PhD candidate in Law at UCT.
