Concourt rules widows must share estate equally

Two widows of a Cape Town man have succeeded in changing the law, after the Deeds office refused to register a portion of their deceased husband’s home in each of their names.

On Friday, the Constitutional Court upheld the High Court of Cape Town’s decision that the term, ‘surviving spouse’, should include every husband and wife of a defacto monogamous and polygamous Muslim marriage, solemnised under the religion of Islam.

Osman Harnaker, who died in 2014 married Amina in 1957 under Muslim rites, and with her permission married Farieda in the same way seven years later.

Despite being married to both women according to Muslim rites for many years, in 1982 he was advised that he had to be legally and formally married to apply for a home loan to buy the house that he would later share with Amina, Farieda and their nine children.

At the time, polygamous Muslim marriages were not recognised by law, so he formalised his marriage to Amina with Farieda’s consent.

After his death, despite his will and a certificate by the Muslim Judicial Council stating that both women share his estate equally, Farieda was refused her portion as she was not recognised under the Marriages and Civil Union Act.

On Friday, the court upheld an earlier ruling and added that to uphold the section of the Wills Act and only recognise one spouse is inconsistent with the Constitution and invalid.