Judge Andre le Grange made the declaration order yesterday after a woman married under Muslim law was denied a share of her late husband’s inheritance by the Registrar of Deeds office.
Farieda Harneker was the third wife of Osman Harneker.
Harneker was married to his second wife under civil union.
According to the Deeds Office, the second wife’s marriage was protected in terms of the civil marriages and she was therefore regarded as the “surviving spouse”.
The Wills Act did not include those married under Islamic law.
Farieda’s lawyer and executor of her husband’s will, Fareed Moosa, argued that widows in polygamous Muslim marriages were discriminated against in respect of “surviving spouse”.
He said Harneker’s marriage was fully recognised under Islamic law and in terms of the Constitution.
“Harneker’s marriage to the deceased could not be less significant than that of a civil marriage under the Marriages Act or an African customary marriage.
“For purposes of this, a ‘surviving spouse’ includes every husband and wife of a married monogamous and polygamous Muslim marriage solemnised under the religion of Islam,” said Le Grange.
He ordered that Harneker be declared a “surviving spouse” and that the Deeds Office lists Harneker as a joint owner of the Cape Town home.
The director of the Women’s Legal Centre Seeham Samaai said in the absence of proper legislature to recognise Muslim marriages and its proprietary consequences, women in these marriages suffer hardships.