One common problem is the marriage contract. According to South African law, if the marriage was registered without a proper ante nuptial contract (which is the only contract that is compatible with Islamic law), it automatically becomes a marriage in community of property. This means that everything (including their personal belongings) is now jointly owned by the couple. Upon the death of either of them, half of the entire estate will go to the surviving spouse, even if in reality 90% belonged to the deceased. This is clearly contrary to the sharee‘ah. According to the sharee‘ah, the husband will be the exclusive owner of his items. The wife will own her belongings exclusively. Upon their death it will be distributed to their respective heirs as outlined in the sharee‘ah.
Once again, despite the marriage in community of property, there really should be no problem. All that is necessary is that the heirs re-distribute the inheritance according to Islamic law, irrespective of what the implications of the community of property are. However, experience has shown that in many instances the wife demanded a distribution according to the un-Islamic western law. Therefore it is necessary to have this matter in order as well by reversing the community of property to a proper ante nuptial contract. An ‘Aalim with experience in these aspects could be contacted for guidance in this matter.
The above also highlights the aspect of definition of property. It has already been stated that according to the sharee‘ah, the husband and wife are the sole owners of their respective belongings. However, when it comes to household effects, there is always much confusion as to who many of the items really belong. If the wife has acquired something with her own money, that will not form part of the husbands estate and vice versa. This problem is particularly common in those instances where the wife also has an income of her own but it is combined with the husband’s income to meet the expenses and purchase what is required. Lack of clarity in this matter at times can even affect the rights of orphans. Therefore, this should be clarified. A simple solution would be for one of the spouses to buy off those items whose ownership is not clear from the other or alternately just give it as a gift. It sounds trivial, but it is extremely important.
(to be continued)