Question
An old couple married + 55 years ago and the husband decided in their early stages of marriage to be court married on the Community of Property contract (All assets belong to each other 50/50). It was the husband’s personal preference to be married in C O P although his family were not happy with this arrangement.
If the husband passes on, will she be entitled to her 50% share or in case of her death will her estate have the 50% share of total Assets? Alternatively, is this marriage contract not permissible and thus all assets have to be distributed in the Shariah manner?
Answer
According to our understanding, in Community of Property marriage, both husband and wife equally share the risk and benefits of a joint estate. In fact, their estate will be regarded as one joint estate and each one of them will own an undivided or indivisible share of the joint estate. Each spouse in a marriage in community of property has equal management of the joint estate; however, the consent of the other spouse in needed in certain transactions. They are both liable for the debts and liabilities of the other, regardless of which one of them incurred the debt and regardless of
whether they were incurred prior or during the marriage. In the event of one of spouse becoming insolvent (is not able to pay his/her debts), the other spouse, in most instances, will also be declared insolvent, because there is one communal estate. Upon the passing on of one of the spouses, 50% of his assets is awarded to the surviving spouse by virtue of COP.
In Islaam, a person will remain the exclusive owner of whatever belongs to him, unless the ownership is transferred or shared as a consequence of being common beneficiaries of an estate. The concept of a joint estate in Community of Property marriage is not compliant with the Islamic principles of Partnership and Commerce. Similarly, according to the Islamic law, if a certain person incurs a debt, another person may not be held responsible for payment unless that second person voluntarily agrees to take responsibility of the debt. By being married in community of property, either of the spouses have in effect bequeathed for a natural heir at the expense of decreasing the rightful shares of their other heirs. In terms of Shari’ah, a person cannot make a bequest in favour of any of his heirs. In a Hadîth, Rasulullâh Sallallahu Alayhi Wa Sallam has said: “No (specific) bequest can be made in favour of an heir.”
In conclusion, Islaam does not recognise the secular concept of marriage in community of property due to it being contrary to Islaamic principles. Hence, if the husband passes on, the wife will only be entitled to the share stipulated for her by Shar’iah. (i.e. 1/8-12.5% in the presence of the deceased’s children or his son’s children however low and ¼-25% in the absence of the above.)
Similarly, if the wife pre-deceased her husband, the husband will only be entitled to the share stipulated for him by Shar’iah. (i.e. ¼-25% in the presence of the deceased’s children or her son’s children however low and ½-50% in the absence of the above.) In principle, all assets will have to be distributed according to Shar’iah.
The only marriage contract in South Africa that can be accommodated in Shari’ah is the AnteNuptial Contract without the accrual system. Therefore, our advice is that if the couple are still alive, they should change to ANC without accrual. For that, they may consult a legal advisor.
Checked and Approved By:
Mufti Muhammed Saeed Motara Saheb D.B.