THE Gauteng High Court's recent ruling on interim maintenance for a woman married in terms of Muslim law highlights the complexities of divorce under Sharia law and its implications for civil rights in South Africa.
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THE Gauteng High Court's recent ruling on interim maintenance for a woman married in terms of Muslim law highlights the complexities of divorce under Sharia law and its implications for civil rights in South Africa.
The court earlier turned down her request for interim maintenance in terms of her Rule 43 application (for interim maintenance pending divorce), IOL reported.
The court did not evaluate her application on its merits, but it made the technical point that because the Muslim marriage had ended via talaq (an Islamic legal term for divorce), the parties were no longer spouses for purposes of being eligible for interim maintenance.
On appeal, the court, however, ruled in favour of the woman on this point in law. It pointed out that the amended Divorce Act applies to all Muslim marriages subsisting after 15 December 2014, regardless of religious termination.
The court said talaq does not preclude a spouse from instituting a civil divorce action and invoking Rule 43 interim protections. “Spouse” in Rule 43 must be interpreted purposively and harmoniously to include a party to a Muslim marriage notwithstanding a prior talaq,” the court said.
It held that parties cannot, by private agreement or acquiescence, waive the statutory protections and judicial oversight embedded in the Divorce Act and any settlement must operate within that framework. It ordered that the woman may re-enroll the Rule 43 application so that another court can determine her application for interim maintenance.
The parties were married in accordance with Sharia Law in November 2020, which is automatically out of community of property. The husband issued the wife with a series of talaqs between February 2021 and March 2022.
Despite the issuing of the talaqs, the parties remained living in their matrimonial home and as husband and wife, and in November 2021, a daughter was born of this union. During March 2022, the Jamiatul Ulama (the Council of Muslim Theologians) at the instance of both parties issued a ruling confirming the existence of an irrevocable talaq.
The Jamiatul Ulama issued a ruling to the effect that a final talaq had been issued and was effective from March or April 2021. In June 2023, the wife instituted divorce proceedings, but the husband issued a counterclaim in which he claimed that the marriage was terminated by the issuing of a talaq in April 2021.
The wife, in turn, argued that notwithstanding the issuing of the talaq during April 2021, the marriage remained recognised at civil law. She subsequently brought the Rule 43 application in which the husband’s argument that there was no marriage was upheld. It was against this order that she appealed the issues before a full court (three judges).
The court pointed out that the Constitutional Court delivered judgment in June 2022 regarding the protection of women and children in Muslim marriages. The Court held the Marriage and Divorce Acts and the common law to be unconstitutional to the extent that they did not recognise Muslim marriages.
The suggestion was meanwhile made on behalf of the husband that a wife must institute action before the divorce under Sharia law in order to enjoy the rights afforded her and her children under the Divorce Act.
The court, in rejecting this argument, said this principle can be described as “first come first served” – whichever spouse institutes divorce, be it under Sharia Law or civil law, determines the choice of law between Sharia Law and civil law. It said this would mean if she instituted action before he pronounced the talaq, she and her children would have the rights under the Act, but if she failed to do so in time, she and her children would be deprived of such legal remedies.
The court commented that there can be no doubt that the amendment to the law was for the purposes of protecting women and children from any unconstitutional consequences of a talaq.