Determining the rights of spouses in polygamous marriages

The incidence of polygamous marriage amongst high profile politicians and other prominent South Africans raises a number of issues concerning the rights of the spouses and children in such marriages. And while the Bill of Rights in the Constitution provides a degree of protection, ongoing legal uncertainty over polygamous marriages warrants careful attention to estate planning in these cases.

Sankie Morata, Fiduciary Specialist at BoE Private Clients says that the issue is particularly pertinent to polygamous marriages within the Islamic community, noting that Islamic marriages are only recognised in South African law if they have been registered by a marriage officer or at a magistrate’s court.

According to Morata, recent High Court judgments have greatly assisted Muslim wives and children, but in the absence of full legal recognition of their marriages and legislation that clearly spells out the legal consequences, they remain vulnerable.

“In the 2008 case of Fatima Hassam v Johan Jacobs NO and Others, the Cape High Court held that a section of the Intestate Succession Act 81 of 1987 is inconsistent with the Constitution, in that it makes provision for only one spouse in a Muslim polygamous marriage to be an heir in the intestate estate of their deceased spouse. The effect of the judgment is that Muslim wives will be treated equally and their rights recognised for purposes of inheritance where the husband does not leave a will.

“The problem, however, is that South African law does not recognise Islamic marriage, unless properly registered. Only two types of marriage contract – the ante nuptial contract and marriage in community of property contract – are recognised in SA law, and even in the case of marriage in community, all sorts of problems may arise with regards to the distribution of inheritance in the instance of a polygamous Islamic marriage,” he says.

Morata says that the parties in polygamous marriages are best advised to seek the assistance of a Fiduciary Specialist in order to ensure appropriate estate planning.

“Marriage of whatever nature represents one of the fundamental bastions of society. The issues, however, can be very complicated and controversial, and individuals in a polygamous marriage are urged to protect their rights and finances by drawing up a will based on a comprehensive estate plan.

“Financial planners for their part must take cognizance of the social dynamics and legal aspects of Islamic polygamous marriages in order to properly identify the needs and provide tailor-made financial advice to this market”, he says.

He notes that the benefits of proper estate planning apply equally to parties involved in monogamous or polygamous marriages.

“Estate planning is essential for a number of reasons. These include ensuring that the right people inherit your assets, that the correct taxes and debts are paid, your business interests are protected and ultimately that your dependants will enjoy continual and uninterrupted income after your death. While polygamous marriages remain a particularly sensitive issue, it is readily apparent that these benefits apply to all persons,” he concludes.