Woman married under Islamic law gets maintenance

A woman married in terms of Islamic law has been granted interim maintenance for herself and her daughter pending her divorce, despite her partner claiming that no marriage existed.

See the case here

The case has brought marriage in terms of Muslim law under close scrutiny by the courts, says a Daily Dispatch report. The woman’s partner claimed he had already divorced her in terms of Muslim law by declaring three times that this was his wish. Her partner claimed that as no marriage existed between them, the rule in terms of which she was bringing the application, which related only to matrimonial matters, had no force. However, notes the report, Judge Elna Revelas in the Port Elizabeth High Court said that the courts had increasingly tended to enforce maintenance and other rights to spouses married in terms of Islamic Law, even though neither the courts nor the legislature legally recognised an Islamic marriage as a marriage in terms of the Marriage Act. She pointed out that the draft Muslim Marriage Bill – aimed at legal recognition of Islamic marriages – was before the Constitutional Court which could result in its ‘expedited promulgation’. This would ‘hopefully create certainty as to the position of Muslim spouses’.


Award for wife despite Muslim ‘divorce’
Source: By Adrienne Carlisle of Dispatchonline

A woman married in terms of Islamic law has been granted interim maintenance for herself and her little daughter pending her divorce, despite her partner claiming that no marriage existed between them.

The case has brought marriage in terms of Muslim law under close scrutiny by the courts.

The woman’s partner claimed he had already divorced her in terms of Muslim law by declaring three times that this was his wish.

They were married in accordance with Islamic Law and Sunni custom.

A divorce is instituted after the husband verbally notifies the wife to this effect three times. This is referred to as talaq and ends the marriage or nikkah.

The woman brought an application in terms of which she was seeking maintenance for herself and her daughter, and a contribution towards her legal costs in the pending divorce action.
Neither party in the action may be identified as they are involved in divorce proceedings.
Her partner claimed that as no marriage existed between them, the rule in terms of which she was bringing the application , which related only to matrimonial matters, had no force.
He said that even if the court did not accept that he had divorced her by virtue of talaq, marriage according to Islamic Law was not the same as a marriage in terms of the Marriage Act.
However, Judge Elna Revelas in the Port Elizabeth High Court said that the courts had increasingly tended to enforce maintenance and other rights to spouses married in terms of Islamic Law, even though neither the courts nor the legislature legally recognised an Islamic marriage as a marriage in terms of the Marriage Act.
She pointed out that the draft Muslim Marriage Bill – aimed at legal recognition of Islamic marriages – was currently before the Constitutional Court which could result in its “expedited promulgation”.
This would “hopefully create certainty as to the position of Muslim spouses”.
In the meantime, she said the purpose of the relief offered by the application was to “regulate the position between the parties until the court finally determined all the issues between them”.
This might include whether the parties had contracted a valid marriage or not or, if they had, whether it still existed.
“Accordingly, I find that the applicant is not precluded from obtaining relief in terms of Rule 43(1) by virtue of her Muslim marriage, irrespective of whether the respondent uttered three talaqs or not.”
The husband was ordered to pay maintenance of R2500 per month for the woman and a further amount of R3000 a month for the child. He was also ordered to pay a contribution of R15000 towards her legal costs.
Revelas said once there was a constitutional challenge in the context of relief sought under the Divorce Act, not only the status and effect of the nikkah, but also the status and effect of the talaq, would be scrutinised. –

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