Muslim Widows Can Now Inherit

South Africa - A Muslim woman, whose husband dies without leaving a will, is now entitled to inherit from his estate, following a decision by the Constitutional Court to recognise unions under Muslim religious rites.

The decision is retrospective, and will provide widows and widowers, deprived of their inheritance, an opportunity to claim from the estate, even if it had been wound up.

The court recognised that this could tax an already overburdened court system, but felt the rights of widows, in particular, were a more urgent consideration.

Justice Albie Sachs said in his majority judgment: "Should problems concerning retrospectivity arise, they stand to be dealt with on a case-by-case basis." The judgment, while seen as a victory for Muslim widows, does not extend to those in polygamous marriages.

This may, however, change if the Constitutional Court decides to recognise polygamous marriages under customary law.

The court is examining the issue of polygamy.

The court yesterday ruled that, in the Intestate Succession Act, the word spouse, and the word survivor in the Maintenance of Surviving Spouses Act, "includes the surviving partner to a monogamous Muslim marriage".

Michelle O'Sullivan, director of the Women's Legal Centre, who brought the case on behalf of Juleiga Daniels, said the effect of the decision was that husbands and wives who were married in terms of Muslim rites may inherit and claim maintenance from the spouses' deceased estates.