Change in South African Law Improves Protection for Muslim Women in Polygynous Marriages
Tuesday, August 04, 2009 11:11 AM

Muslim women in polygynous marriages (in which a man is married to multiple women) will be better protected under changes the Constitutional Court made to South African law on July 15, 2009. Ruling on a case involving a Muslim woman denied an inheritance claim to her husband’s estate because she was not his only wife, the court eliminated provisions in the Intestate Succession Act allowing only one spouse to make claims against a deceased husband’s estate.  The new law allows all the wives of a Muslim man to make claims against his estate in cases where no will exists.

 

The court commented that the law discriminated against Muslim women in polygynous marriages, but not against Muslim men in those marriages. “By discriminating against women in polygynous Muslim marriages on the grounds of religion, gender and marital status, the act clearly reinforces a pattern of stereotyping and patriarchal practices that relegates women in these marriages to being unworthy of protection,” said Judge Bess Nkabinde of the Constitutional Court.

 

The new law is a step toward eliminating discriminatory law in South Africa, according to The Women’s Legal Centre.  A representative from that group commented that “this confirmation of constitutional invalidity of legislation, which marginalises a class of women, reflects the necessity that the legislature and the judiciary must only look to the constitution for guidance and uphold its supremacy.”

 

Muslims make up the largest minority in South Africa, however, Muslim family law is not recognized by South Africa’s government.  According to Musawah, an organization working for the recognition of Islamic law in South Africa, this results in difficulties for women living under Muslim law or married under Muslim rites because they cannot turn to the government to enforce the protections Muslim law provides.  

 

Compiled from: “South Africa: Court Finds Law Discriminating Against Muslim Widows Unacceptable,” Law Library of Congress (21 July 2009); Ernest Mabuza, “Court Rules in Favor of Muslim Widows,” BUSINESSDAY (16 July 2009); “Equality in the Family,” Musawah (2009).