Analysis of Testate and Intestate Succession of Religious Marriages in South Africa

Abstract 

Abstract South Africa’s constitution provides a structure that creates a legal  environment that is conducive to the coexistence of different religious marriages. The  system (Testate or intestate) determines how inheritance is regulated by the Wills Act  7 of 1953 and the Intestate Succession Act 81 of 1987. Family law is rooted in constitutional values of equality, dignity, and non-discrimination, which foster a fair  procedure of succession. While religious marriages that are registered through civil  registration are fully recognized, there are some ambiguities regarding certain religious marriages. 

The Issue of the lack of legal recognition of spouse and child rights in polygamous  marriages is explored in relation to the law of succession. Scholars have shared their  viewpoints on the challenges of applying legislative definitions of “spouse” and “heir”  to non-civil marriages, leading to contrary decisions. In situations where religious  marriages do not have legal recognition, case law demonstrates support in cases  where the constitutional court’s decision to expand inherited rights to encompass  heirs of a polygamous marriage.  

This article emphasises the tension between succession rights and constitutional  principles, focusing on polygamous Muslim marriages. The results reveal ongoing  family law issues. Recommendations promote constitutional clarity and judicial  consistency to ensure fair succession while respecting constitutional values.

Introduction  

South Africa’s constitutional framework institutionalizes a diverse legal environment,  managing the coexistence of various religious marriage systems within statutory law  through specific legal mechanisms and policies1. The law of succession is the body of law that governs the administration of an estate and determines who inherits, in  what shares, and under which system (testate or intestate). It is governed through  the Wills Act 7 of 19532 and the Intestate Succession Act 81 of 19873. Constitutional  values, such as equality4 and non-discrimination5, are crucial to succession laws  within family law. Although religious marriages that are registered as civil marriages  are recognized, some religious marriages still face legal ambiguities in inheritance  rights6. This study will be centred on the comparison of testate and intestate  succession within religious marriages to emphasize differences in legal recognition  and inheritance rights. The legal recognition, rights of spouses and children, and  succession challenges will be examined. 

Significance and Justification 

The analysis explores the deep-rooted void with regard to the law of succession. The  beneficiaries of this study would be Family law enthusiasts, Legal practioners, and  students who desire to seek a deeper understanding of the nuances of religious  marriages in family law.  

Structural Overview  

This article will be structured into 5 parts of Content starting with Part 2 Which will  examine the Legal Framework through Legislation, case law, and scholarly work.  Part 3 will include the analysis of the topic, and Part 4 will be a comparative  perspective of different jurisdictions. Part 5 will be Findings and Conclusion, and the  recommendation will be the last section of content, followed by References 

Literature Review 

Statutory Frameworks and definitions 

According to the Wills Act 7 of 1953, testate succession is the administration of  estates governed by the instructions that had been laid by the testator/testatrix by a  valid will. Furthermore, the formalities of a valid will, written, will signed by the  testator or testatrix (or their representative) by at least 2 witnesses, who will  otherwise sign each page of the will7. 

A religious marriage is a union concluded in terms of religious law and practice,  solemnized by a religious authority, and not necessarily registered or recognized  under the Marriage Act 25 of 19618. 

For a religious marriage to be registered as a civil marriage, it must meet the  requirements of a union of two spouses who are competent in legal capacity and  legal status (have achieved the age of majority) and have full mental ability. The  registration process is solemnized by a government marriage officer and two  witnesses to testify to the existence of the contract. Then followed by its respective  religious ceremony9.  

Christian marriages that primarily proceed with the civil procedure will be recognized  under the Act, as well as Jewish marriages, which are generally recognized as civil  marriages if the civil procedure is followed. Hindu marriages that are monogamous  are recognized as civil marriages if they are solemnized by a government marriage  officer, alongside Muslim marriages that are monogamous10.  

Recognition of ambiguities in Religious Marriages  

The ambiguity presents itself in Hindu rite and polygamous Muslim marriages, which  are not recognized by the Marriage Act 25 of 196111 and the Recognition of  Customary Act 120 of 1998.  

There is a distinction between the two marriages in which polygamous Muslim  marriages are partially recognized. 

The Intestate Succession Act of 1987 is used by the court when the owner of an  estate dies without leaving a valid will, allowing the court to use the Act to decide the  heir(s) and split the share. In general, the heir would be chosen from among those  who are closely related by affinity and consanguinity12. 

Scholarly Perspectives  

Dr Jamneck states that the Intestate Succession Act’s provisions, particularly  sections 1(6) and 1(7), create challenges when applied to families not in civil  marriages, revealing legal issues for heirs in polygamous marriages. 

Sections 1(6) and 1(7) define “spouse” and “heir”, but their relevance to non conventional religious weddings is ambiguous13. This ambiguity results in  inconsistent legal rulings, leaving some heirs uncertain about their inheritance rights,  and so creating challenges for courts in the devolution of deceased estates14.  According to Michael Cameroon Wood Bodley, vagueness and exclusions in the  Intestate Succession Act 81 of 1987 may undermine the Constitution’s provisions for  equality, dignity, and non-discrimination15. 

Case law examples  

In the case of Hassam v Jacobs NO and others, the constitutional court determined  the intestate succession involving a polygamous marriage. The court concluded that  the exclusion of spouses in polygamous Muslim marriages from their inheritance  rights was deemed to be unconstitutional, therefore unlawful, as it violated the right  to equality and dignity16. The judgment ensured that all surviving spouses and children could inherit, succession rights were recognized, and the marriage was not  fully recognized. 

The case of Govender v Ragavayah NO and Others involved monogamous Hindu  spouses who died intestate following a marriage performed according to Hindu  ceremonies but not registered under civil law17. The High Court ruled that the term  ‘spouse’ in Section 1 of the Intestates Succession Act 81 of 1987 must encompass  the surviving partner of a monogamous Hindu marriage, as well as the marriage’s  children, as they are dependent on the recognition of the spouse, for inheritance  purposes18. 

The parties to religious marriages who do not adhere to the required legal procedure  to safeguard constitutional values and ensure that intestate succession is made  available are now entitled to do so due to these two historic cases.  

The Case law and scholarly reports identify that, though some religious marriages  now benefit from protection in intestate succession, there are still gaps that exist for  Hindu rites marriages. This reveals the continuous, complex nature of South African  Family Law.  

Discussion  

Testate Succession is regulated by the Wills Act 7 of 1953  

Issue:

What is the relation of interaction between religious marriages (Christian,  Jewish, Muslim, and Hindu Marriages) with the testate succession? Are Spouses  and their children sufficiently protected from inheritance rights?  

Rule:  

In consideration of section 2 of the Wills Act 7 of 1953, it is determined that  Christian and Jewish marriages that have been registered as civil marriages  experience no obstruction concerning Testate Succession19.  

Monogamous Hindu and Muslim Marriages are recognized if the civil registration  formalities have met. There’s a line of distinction between Civil Religious  Marriages and Muslim Marriages in terms of full recognition, which arises in the  rise of ambiguity. In terms of legality, one is fully recognized, and the other is  partially recognized20. 

Application: 

It has been identified that the court, through its judicial approach, lies in favour of  monogamous marriages, in its interests, concerns upholding human rights of  equality, non-discrimination, and dignity. According to the constitution, all citizens  are entitled to a standard-based treatment under the law, regardless of their Age,  Sex, Sexuality, Religion, Occupation, or gender21.  

The legal gap in the succession of religious marriages that are excluded from the  Marriage Act of 25 of 1961 causes a degree of unfairness in succession rights.  Scholars (Dr Jamneck and Michael Wood Bodley) have noted down an argument  of standing against the violation of constitutional values22. There is a two-way argument of protecting constitutional values vs Upholding fairness in succession  rights. One side perceives that the rights of a person must be ensured, and on  the other, the rights of succession should be fair.  

Conclusion 

Due to this unfairness, the Constitutional Court in the case of Hassam v Jacobs23 partially recognized polygamous marriage to maintain fairness in the law of  succession. A solution of tension between constitutional values and succession  was resolved. Though marriage is not recognized, the heirs of the marriage between the spouses are deemed to acquire their inheritance, therefore  executing  

Intestate Succession in Religious Marriages 

1.2 Issue: How does the law in intestate succession protect non-civil religious  marriages in succession? 

Rule: 

The Intestate Succession Act 81 of 1987, Section 1(6) and 1(7) define the  qualification of heirship. Monogamous religious marriages are generally  recognized if they meet their required formalities, leading to a straightforward Inheritance24. By contrast, Muslim Marriages are partially recognized through the  case of Hassam v Jacobs25. 

Application  

The outcome for polygamous marriages is inconsistent with Hassam v Jacobs, where a Muslim, the children, and spouses may be protected26, as the court in  favour may seek to ensure that the constitutional values of equality, dignity, and  non-discrimination are not infringed, while maintaining rights to succession27.  

Conclusion 

The Law in its current state is ambiguous, as the above-mentioned scholars have  pointed out. Its ambiguity has ceased to impact polygamous Muslim marriages. This tension may violate the right to equality and dignity of the parties of hind 

Counterarguments  

An opposite perspective has been laid out by critics that a uniformity of law  cannot tolerate religious diversity, as the notion of integrating polygamous rights  may disrupt civil marriage standards. One may conclude that this contradicts the  right to religious freedom, but Section 36 of the Constitution of the Republic of  South Africa, 199628. States that the Bill of Rights may be limited only in terms of  general application, and the specific degree to which the extent would be limited  if it were by a reasonable and justifiable open and democratic society based on  dignity, equality, and freedom.  

The factors the court will consider: 

• The nature of the right  
• The importance and purpose of the limitation 
• The nature and extent of the limitation 
• The relation between the limitation and its purpose 
• Whether less restrictive means could achieve the purpose  

The right to freedom is a fundamental constitutional right, but it is not absolute. The  right to equality, dignity, and non-discrimination are both basic rights, so the court will  have to weigh them together. A common standard for civil marriage is essential for  clarity of administration procedures, legal certainty, and equality that is substantive  and formative amongst spouses. Therefore, the limitation of Polygamy may be  justified to protect the rights of women and prevent exploitation. The absolute  exclusion of polygamous marriage has its own limitations, Unfair distribution of  estate. Therefore, partial recognition, whereas the rights of succession are included.  The limitation seeks to ensure a resolution of the tension of the succession of  polygamous marriages and the Upholding of constitutional values. The case of  Hassam v Jacobs demonstrates how inheritance rights can be extended without  collapsing civil marriage standards29 

In consideration of the analysis above, it is suggested that the court may decide on a  less restrictive means of regulating the succession of polygamous marriages while  maintaining the status quo of constitutional values. 

Key observations  

• First, the traditional standard of marriages, which is civil marriages  experience a smooth line of succession.  
• Second, non-civil marriages, such as polygamous marriages, due to  experience gaps, which is that Muslim polygamy is partially addressed  
• Third, the constitutional court may deem that constitutional values override the recognition of polygamous unions 
• Fourth, Spouses and, in the same context, their children should receive Fair  inheritance rights without having full marital recognition.  
• Fifth, the analysis emphasizes a less restrictive means of regulating instead  of legislative reform, which may not be in the best interest of the General  public.  
• Sixth, the Court, in its use of the limitation cause, may restrict the right to  religion. 

Conclusions and Recommendations  

This research has shown by analysis that, if an equitable distribution of estates is  utilized as a foundation, the testate and intestate succession of religious marriages  has discovered possible heirs of non-civil marriages who might be granted their  rights. The results highlight the need for the courts and legislation to overcome  recognition gaps to ensure justice in the law of succession, especially for heirs in  religious marriages who are not subject to civil proceedings.  

Recommendations include:  

For Legislatures:  

To provide administrative guidelines for estate officers to guarantee equitable estate  distribution in religious weddings 

For the court:  

to provide judicial uniformity in applying the equality, dignity, and non-discrimination  principles of the Constitution to succession conflicts on religious marriages. 

Less restrictive methods should be used to increase inheritance rights without  compromising civil marriage norms, as was shown in Hassam v. Jacobs.

Bibliography 

Cases 

• Govender v Ragavayah NO and Others (6715/08) [2008] ZAKZHC 86; 2009  (3) SA 178 (D); [2009] 1 All SA 371 (D) (6 November 2008). 
• Hassam v Jacobs NO and Others (CCT83/08) [2009] ZACC 19; 2009 (11)  BCLR 1148 (CC); 2009 (5) SA 572 (CC) (15 July 2009). 

Statutes 

• Constitution of the Republic of South Africa, 1996, ss 9–10, 15(3), 36(1).
• Intestate Succession Act 81 of 1987 (South Africa), ss 1(1), 1(6)–(7).
• Marriage Act 25 of 1961 (South Africa), ss 1–2. 
• Wills Act 7 of 1953 (South Africa), ss 2(1)–(2). 

Books / Scholarly Articles 

• J. Jamneck and M. Wood-Bodley, ‘Islamic Marriages and the Law of  Succession in South Africa’ (2010) 127 South African Law Journal 142–159. 
• Juanita Jamneck, ‘The Problematic Practical Application of Section 1(6) and  1(7) of the Intestate Succession Act Under a New Dispensation’ (2014) 17  Potchefstroom Electronic Law Journal 973–997 http://dx.doi.org/10.4314/pelj.v17i3.04. 
• Michael Cameron Wood Bodley, ‘Intestate Succession and the Survivor of an  Unformalised Same Sex Conjugal Relationship: Laubscher NO v Duplan 2017  (2) SA 264 (CC)’ (2018) 39 Obiter 276–287 https://doi.org/10.17159/obiter.v39i1.11408.

1 Constitution of the Republic of South Africa, 1996, s 15(3) 

2 Wills Act 7 of 1953, s 2(1) 

3Intestate Succession Act 81 of 1987, s1 

4 Constitution of the Republic of South Africa, 1996, s 9(1) 

5 Constitution of the Republic of South Africa, 1996, s 9(3) 

6 Dr Waheeda Amien, Failure to Recognise Religious Marriages in South Africa May Point to a Lack of  Political Will (UCT News, 15 May 2017) https://www.news.uct.ac.za/article/-2017-05-15-failure-to recognise-religious-marriages-in-south-africa-may-point-to-a-lack-of-political-will accessed 18 January  2026.

7 Wills Act 7 of 1953, ss 2(1)-(2). 

8 Marriage Act 25 of 1961, s 1 (definition of marriage) and s 2(1). 

9 Marriage Act 25 of 1961, ss 2(1)–(3). 

10 Marriage Act 25 of 1961, s 2 

11 Marriage Act 25 of 1961, ss 1–2; (Polygamous marriages not recognized)

12 Intestate Succession Act 81 of 1987, ss 1(1)–1(7). 

13 Juanita Jamneck, The Problematic Practical Application of Section 1(6) and 1(7) of the Intestate  Succession Act Under a New Dispensation (2014) 17 Potchefstroom Electronic Law Journal 973–997  http://dx.doi.org/10.4314/pelj.v17i3.04  

14 Intestate Succession Act 81 of 1987, ss 1(6)–(7) (ambiguity for non-civil marriages).

15 Michael Cameron Wood-Bodley, Intestate Succession and the Survivor of an Unformalised  Same-Sex Conjugal Relationship: Laubscher NO v Duplan 2017 (2) SA 264 (CC) (2018) 39 Obiter 276–287 https://doi.org/10.17159/obiter.v39i1.11408  

16 Hassam v Jacobs NO and Others (CCT83/08) [2009] ZACC 19; 2009 (11) BCLR 1148 (CC); 2009  (5) SA 572 (CC) (15 July 2009)

17 Govender v Ragavayah NO and Others (6715/08) [2008] ZAKZHC 86; 2009 (3) SA 178 (D); [2009]  1 All SA 371 (D) (6 November 2008) 

18 Intestate Succession Act 81 of 1987, s 1(6)–(7)

19 Wills Act 7 of 1953 s 2. 

20 Marriage Act 25 of 1961. 

21 Constitution of the Republic of South Africa, 1996 ss 9–10. 

22 J Jamneck and M Wood-Bodley, ‘Islamic Marriages and the Law of Succession in South Africa’  (2010) 127 South African Law Journal 142–159, esp 148–150. 

23 Hassam v Jacobs NO 2009 (5) SA 572 (CC) paras 28–33.

24 Intestate Succession Act 81 of 1987 ss 1(1), 1(6)–(7). 

25 Hassam v Jacobs NO 2009 (5) SA 572 (CC). 

26 Hassam v Jacobs NO 2009 (5) SA 572 (CC) paras 28–33, 45–47. 

27 Constitution of the Republic of South Africa, 1996 ss 9–10. 

28 Constitution of the Republic of South Africa, 1996 s 36(1).

29 Hassam v Jacobs NO 2009 (5) SA 572 (CC) paras 28–33, 45–47.