A Penny for Your Thoughts: Inheritance - Community of Property Marriage vs. Islamic Law of Marriage

Ms. Hafsah Suleman-Karrim

Hafsah Suleman and Associates
 
Marriage, held as a consecrated act before God by most religions, has over the recent years displayed great controversy before the Courts of South Africa.
 
By default application, all marriages registered in the Republic of South Africa operate as marriages in community of property, unless an ante-nuptial contract[1]is entered into by the parties prior to registration in the Republic. Riding on the same principal of default, all marriages entered into by way of Islamic Rites also known as Nikkah[2], operate as marriages by way of ante-nuptial contract without accrual. Inheritance by virtue of marriage, another beast in its right, is vast in its application and principles. In terms of the Laws of Succession[3]as entrenched in South African Law, a surviving spouse married in Community of Property is entitled to fifty percent of the Joint Estate and thereafter a further fifty percent share from the deceased’s estate in the event of death. Inheritance in terms of Islamic Law on the other hand graciously entitles a wife to one-eight of her husband’s estate, notwithstanding that the marriage between them is one of ANC without accrual. in keeping with the values of an ANC marriage, the husband however, is not entitled to a penny of the wife’s estate in terms of Islamic Law.
 
By their inherent nature, these two Laws sit on competing and opposite sides of the coin. A vicious game of head and tails lie on the tables when deciding on which law takes precedence, as we have seen brought before our courts. The real question up for debate however is how to approach a conflict arising when a muslim man and woman, having been married by way of Nikkah, simultaneously registers their marriage in The Republic of South Africa under the default matrimonial regime of community of property?[4].
 
This spinning of the coin becomes rampant when a muslim couple married by way of Nikkah and whose marriage is also registered within the Republic of South Africa; decide they wish to enter into a Will that is completely Islamic in nature. How do the Estates of such individuals devolve? How will the Courts look upon such a union between two people and what approach will be favoured? Whereas a wife once entitled to one-eighth of her husband’s Estate in an Islamic marriage, is now suddenly endowed with a fifty percent share in the “joint estate”[5].
 
For a Will in terms of Islamic Law to be valid, the marriage between a husband and wife has to be off the marital regime ANC without accrual. Therefore where there is a valid COP marriage in existence and a Will in terms of Shariah Law has been concluded by such parties, prima facie, such a will must be deemed void since matrimonial regime precedes a testamentary bequest. On the same note for a Will in terms of Islamic law to be recognised as valid where a COP marriage exists, the wife is requested to forfeit her benefits in and to such a marriage and consent to the application of Islamic Law of Inheritance.
 

Perhaps the coin should be laid to stand upright, allowing the rules to bend in consideration of a marriage in community of property co-existing symbiotically with an Islamic Will. This would mean that both Islamic Law and South African Law reaching a compromise to benefit the intention of the parties. Effectively, where parties have entered into COP marriages purely out of duty to the Land, and now wish to fulfill religious obligations by bequeathing their assets as per Quraanic ordinance, should be allowed to do exactly that, without contravening Islamic law.

The foundational principal of bequeathing any asset both in terms of South African and Islamic Law is that you must be the owner of that asset. The material worth of most community of property marriages today are two-fold – that is equal contribution by both husband and wife. Based on fairness, equality and justice, it is suggested that the South African Jamiatul- Ulama[6]apply the principles of community of property first and thereafter an application in terms of Islamic Inheritance to pursue. An outright equal division should take place of all assets of the marriage first before applying the one-eight rule to the husband’s share. It is no misnomer that Shariah Law of Inheritance greatly benefits the husband over the wife where such circumstances of community of property exist[7]. With the aforementioned application however, the wife receives her fifty percent share of the joint estate and a further one-eight from her husband’s share. Each party is afforded the choice to bequeath exactly what they own, without the waiver of any of their rights in and to a marriage consensually and mutually entered into.
 
This suggestion of the vertical application of the Law is by no means a simple one, polished and devoid of flaws. These situations if anything raises more questions and it remains to be seen what precedents are to be set by our Courts. I hope I have given worth to the idiom “a penny for your thoughts” and definitely wish to hear the sound of coins pouring from your brain for fifty percent sounds so much better than one-eight.
Written by:
Ms. Hafsah Suleman-Karrim
Hafsah Suleman and Associates
Cell: 0836769995
Tel: 031 4093282
Fax:0865668879
Email:hafsah@sulemanattorneys.co.za
 

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[1]These Ante-Nuptial Contracts can be entered into with or without the accrual system.
[2]An Islamicmarriage between a male and female.
[3]South African Laws of Succession are vast. The focus of this article is intestate and/or testate inheritance where Community of Property marriages exist. In terms of intestate succession, in the event of death, the surviving spouse is entitled to fifty percent of the Joint Estate. Thereafter by virtue of the COP marriage he/she is entitled to a further fifty percent share from the deceased, making the surviving spouse a fifty percent owner of the Deceased’s Estate, and finally there is the added benefit of a child’s share to accrue to the surviving spouse.
[4]Most Islamic marriages entered into prior the era of democracy and the dawning of the Constitution’s right to religious freedom, had to be registered in terms of South African Law to be recognised as a valid marriage. Lay persons were unaware of marital regimes and the option of entering into an ANC, and therefore followed the Law of the Land. As a result today we have complicated marital systems.
[5]See Note 3
[6]Islamic Council responsible for Islamic Law guidance on pertinent issue of Shariah Law
[7]Shariah Law has logical reasoning for such a division of the Estate. For one, the wife is not expected to contribute pecuniary value to the marriage. Therefore the one-eight that she receives was never hers in the first place and therefore given graciously to her by her husband. There is however the presumption that the wife had no assets to her name and effectively is coming out with more than she had bargained for, so to speak.
 
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