The consequences of an Islamic divorce October 2019

By MUNEER ABDUROAF, Published in Law of Succession

This article analyses a Western Cape High Court judgment concerning an inheritance matter. Faro v Bingham NO & Others (4466/2013) [2013] ZAWCHC 159 (25 October 2013) concerned a deceased Muslim male (Moosa Ely) who died intestate. Ely married Tarryn Faro in terms of Islamic law on 28 March 2008. The couple had problems and Ely wanted a divorce. He issued Faro with a revocable divorce in the form of a Talaaq on 24 August 2009. In 2009, Ely was diagnosed with lung cancer and died on 4 March 2010. Faro was appointed as the executrix of the deceased estate. However, a dispute arose concerning whether Ely was married to Faro when he died.

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The issue concerning the revocable divorce

Faro argued that she was married to Ely when he died. She argued that the divorce was revoked during the waiting period because she had sexual relations with him during that time. South African Muslims essentially follow the Shaafi'ee and Hanafee schools of law. The dispute took place in the Western Cape where the Shaafi'ee school of law predominates. In terms of the Shaafi'ee school of law, sexual relations do not revoke a divorce. Express words of revocation would be required in order for a proper revocation to take place. The Muslim Judicial Council (SA) (MJC) based in Cape Town was approached for a verification certificate regarding the status of Ely and Faro's marriage when Ely died. The Council issued a certificate and two subsequent letters regarding this matter; the last letter stated that the divorce had not been revoked during the waiting period, and Faro was not, therefore, a surviving spouse.

It has been suggested that the Muslim Judicial Council (SA) should be more structured concerning the procedures followed when issuing certificates and letters in this regard. In light of the MJC's letter, the Master of the High Court rejected Faro's assertion that she was Ely's spouse.

The Master's decision was taken on appeal to the Western Cape High Court. The court noted that the predominant view in Islamic law is that a divorce may be revoked by express words or by sexual relations between the parties concerned. It is interesting that the Western Cape High Court overruled both the decision of the Muslim Judicial Council (SA) and that of the Master of the High Court, and declared that based on the evidence before the court, the marriage was intact at the time that Ely died. This situation raises the issue of the doctrine of religious entanglement. The Supreme Court of Appeal stated in De Lange v Presiding Bishop, Methodist Church of Southern Africa and Another 2015 (1) SA 106 (SCA) that "a proper respect for freedom of religion precludes our courts from pronouncing on matters of religious doctrine, which fall within the exclusive realm of the church". In this instance I would argue that it falls within the exclusive realm of Islamic institutions in the Western Cape. It would make more sense had the Western Cape High Court followed the ruling of the Muslim Judicial Council (SA). The Western Cape High Court declared Faro was Ely's spouse in terms of the Intestate Succession Act (81 of 1987) and the Maintenance of Surviving Spouses Act (27 of 1990).

In the absence of legislation governing Muslim marriages, and the consequences thereof, I would suggest that South African Muslims should state at the time of their marriages which school of law should apply. This could be done by way of affidavits. The documents could be attached to the marriage certificate bringing about legal certainty.

Consequences of the judgment

Ely died leaving Faro, minor son conceived in wedlock, and a minor son conceived out of wedlock, a major son from a previous marriage and a major daughter from a previous marriage. For purposes of this discussion it will be presumed that the major son and daughter were conceived in wedlock. The distribution of the deceased estate is now looked at based on these facts. Although the value of the deceased estate is not given in the judgment, it does state, however, that an executor was appointed. No reference is made to the appointment in terms of s18(3) of the Administration of Estates Act (66 of 1965). It could be assumed therefore that the estate was greater than R125 000. For purposes of comparison between the Islamic law and South African law, it will be assumed that the net estate was R160 000. This amount has been used in order to facilitate easy calculations which ensure that the amount inherited by each of the intestate beneficiaries is in Rands only, with no cents.

The Islamic law beneficiaries in this scenario would be two sons, a daughter and Faro. The minor son conceived out of wedlock would be disqualified from inheriting in terms of Islamic law. Faro would inherit 1/8 and the remaining 7/8 would be shared between the two sons and one daughter. 1 The sons would each inherit double the share of the daughter. The widow would inherit 1/8 = 5/40 and the remainder 7/8 = 35/40. The widow would inherit 5/40 x R160 000 = R20 000, each son would inherit 14/40 X R160 000.00 = R56 000, and the daughter would inherit 7/40 X R160 000 = R28 000.

The South African law position is quite different. The widow would inherit the greater of a child's share or R125 000.00. 2 The widow would inherit R125 000 and the remaining R35 000 would be shared equally between the three sons and daughter. Each of the four children would inherit R8 750. It is clear that the two legal systems operate quite differently in the event where intestate laws find application. I would therefore advise all South African Muslims to draft and execute Islamic wills stating that their estates must be distributed in terms of the Islamic law of succession. This would ensure that Islamic law consequences apply.

I would, therefore, recommend that South African Muslims should state which schools of law should apply to their marriages and the consequences thereof. All South African Muslims should also be encouraged to draft and execute Islamic wills stating that their estates must be administered in terms of Islamic law to bring about legal certainty.

Dr Abduroaf is a Lecturer, Dept. of Criminal Justice and Procedure, Faculty of Law, University of the Western Cape.

1 See Khan MM The Noble Qur'an - English Translation of the Meanings and Commentary 1404H (4) 11 where it states that 'Allah commands you as regards your children's (inheritance); to the male, a portion equal to that of two females; if (there are) only daughters, two or more, their share is two thirds of the inheritance; if only one, her share is half. For parents, a sixth share of inheritance to each if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased left brothers or (sisters), the mother has a sixth. (The distribution in all cases is) after the payment of legacies he may have bequeathed or debts. You know not which of them, whether your parents or your children, are nearest to you in benefit, (these fixed shares) are ordained by Allah. And Allah is Ever All-Knower, All-Wise. 12. In that which your wives leave, your share is a half if they have no child; but if they leave a child, you get a fourth of that which they leave after payment of legacies that they may have bequeathed or debts. In that which you leave, their (your wives) share is a fourth if you leave no child; but if you leave a child, they get an eighth of that which you leave after payment of legacies that you may have bequeathed or debts. If the man or woman whose inheritance is in question has left neither ascendants nor descendants, but has left a brother or a sister, each one of the two gets a sixth; but if more than two, they share in a third; after payment of legacies he (or she) may have bequeathed or debts, so that no loss is caused (to anyone). This is a Commandment from Allah; and Allah is Ever All-Knowing, Most-Forbearing.'

2 See s 1(1) of the Intestate Succession Act 81 of 1987 where it states that '[i]f after the commencement of this Act a person (hereinafter referred to as the 'deceased') dies intestate, either wholly or in part, and - … (c) is survived by a spouse as well as a descendant - (i) such spouse shall inherit a child's share of the intestate estate or so much of the intestate estate as does not exceed in value the amount fixed from time to time by the Minister of Justice by notice in the Gazette, whichever is the greater; and (ii) such descendant shall inherit the residue (if any) of the intestate estate.' The amount fixed by the Minister is currently R250 000.00. See Chief Master's Directive 3 of 2015, Circular 58 of 2015, effective 17 August 2015, available at www.justice.gov.za/master/m_docs/2015-03_chm-direc... (accessed 16 November 2017). The amount prior to 17 August 2015 was R125 000. It should be noted that the deceased in this matter passed away on 4 March 2010.