Polygyny, the Constitution, and the law

This article was interesting, in that it shows how constitutional rights can override old, existing laws; especially relevant in this very multicultural society of ours.

'Codify Muslim law'
2009-07-16 13:36
Verashni Pillay

Cape Town - "I think I'm opening the way for many other women out there who are suffering in my position," said Fatima Gabie Hassam, blinking away tears following the Constitutional Court ruling on Wednesday that Muslim widows in polygynous marriages could inherit from their deceased husband's estate.

Hassam, 62, fought a five-year court battle to hang on to her house and inherit some of her husband's estate after he unexpectedly died in 2001.

He died without a will and had just married a second wife without her knowledge and permission, whose minor children would benefit from maintenance claims from the estate.

Hassam was left destitute after 36 years of marriage and hard work at her husband's shop.

Only one spouse

While all 10 children in the marriage received a portion of the estate neither women could inherit as the Intestate Succession Act and the Maintenance of Surviving Spouses Act makes provision for only one spouse.

But the Constitutional Court ruled that the both acts were discriminatory and unfair. It ordered that the word "all spouses" be inserted into the act wherever the word "spouse" appeared.

"It's been a hard road and eventually it's come to an end," Hassam said in Cape Town on Wednesday. "There were lots of stumbling blocks but I was determined to go that route."

She told reporters that older Indian and Coloured women in polygamous marriages often suffered most in polygynous marriages.
Polygany refers specifically to more than one wife in a union while polygamy refers to either multiple husbands or wives.

"The first wives work their whole lives off and the wives who come afterwards get everything - the best cars." The younger woman her husband married had worked as a domestic in his shop. He married her while Hassam went on a trip to Mecca with her wheelchair-bound mother.

Her long battle came to an end, after stays in Valkenberg psychiatric hospital while she battled anxiety. Her tiny home on the Cape Flats could not be transferred to her name as the municipality did not recognise her as her husband's spouse.

"My water has been cut off more than five times because it's in his name," she said.

While Muslim customary law is still not recognised, Hassam's lawyer Igshaan Higgins said this latest victory would speed up the process.

'Codify Muslim law'

"Hopefully this case will act as kind of a springboard to wake the legislature up to the fact that they're going to need to have Muslim personal law codified to prevent a situation like this from transpiring in the future," he told News24.

The Intestate Succession Act previously only recognised widows married in civil ceremonies, monogamous Muslim marriages and polygynous cultural marriages.

The Women's Legal Centre's Hoodah Abrahams-Fayker said legislation relating to Muslim marriages has been on the cards for more than a decade. "Legislation urgently needs to be passed in order to be on par with the Constitution to ensure the Muslim community’s human rights," she said.

Meanwhile Hassam joyfully embraced her lawyer thanking him for his largely pro bono work. She also credited the Women's Legal Centre for their help and support.

"I couldn't have had better lawyers," she said.

Higgins emphasised that the ruling was a victory for all South Africans. "Especially to marginalised or vulnerable groups - it shows that the constitution can provide for everybody."

Hassam's legal team would now begin negotiating with the executor of her husband's estate to claim her inheritance and - hopefully - her house.

Source: News24