Q. Kindly advise me on the following scenario My parent passed away, left islamic will, one parent still alive Parents were married community of property not anc How will distribution affect my parent not married anc and with islamic will left behind Who do i contact for resolving estate
(Query published as received)
A. The ‘Community of Property’ matrimonial regime is not recognized in Islamic Law. In the Shari’ah, ownership is established for each person individually by default. Such ownership is transferred or shared through specific juristic acts or events. Marriage is not one of them, and hence does not create a partnership or ‘Community of Property’.
The only recognized matrimonial regime in the Shari’ah that has been prescribed by South African Law is a marriage ‘Out of Community of Property without the accrual system’ by means of an Ante Nuptial Contract where each spouse retains all of his/her assets.
In answer to your questions:
50% of the deceased spouse’s assets will be awarded to the surviving spouse by virtue of COP, which is wrong according to the Shari’ah.
As a result, only 50% will remain as part of the estate of the deceased. This 50% will be distributed according to Islamic Law by virtue of the Islamic Will. This effectively will mean that the estate of the deceased spouse will be first halved. The surviving spouse will then be further awarded ¼ or 1/8th (depending if the deceased is the husband or wife respectively in the case of there being children) of 50% of the deceased’s assets and the surviving child or children and other heirs will inherit the remainder according to the proportions prescribed by the Islamic Law of Succession and Inheritance.
In essence, besides the surviving spouse, the remaining heirs are deprived of 50% of their inheritance that they are deserving of, which is tantamount to usurpation; which is a major sin in Islam.
In order to circumvent such disastrous consequences, it is highly emphasized on all married couples to have their marriages registered ‘Out of Community of Property and excluding the accrual system’ by means of an Ante Nuptial Contract. An Islamic marriage (Nikah) is considered to be in Community of Property by default unless registered otherwise. For more information, kindly refer to the article here.
It will be up to the surviving spouse to realize her obligation as a Muslim and avoid claiming the 50% and allow for the entire estate to be distributed according to Islamic Law. The Jamiatul Ulama KZN provides the service of dispute resolution, mediation and arbitration and you are welcome to request the assistance of the Jamiat in resolving this issue according to the principles of Islam.
And Allah Knows Best
Mufti Suhail Tarmahomed
Mufti Advocate Emraan Vawda
Jamiatul Ulama (KZN)
Council of Muslim Theologians
223 Alpine Road, Overport, Durban
Tel: +27 (0) 31 2077099
Fax : +27(0) 31 2074163
Website : www.jamiat.org.za