Muslim mom wins maintenance case
A LOCAL Muslim mother of two, divorced from her husband, has won her legal fight for the payment of maintenance in a vital judgment.
In a landmark decision which confirmed that Muslim divorced women have the right to be paid maintenance, even though Muslim marriages are not recognised in terms of South African law, the Durban High Court ordered the woman’s ex-husband to pay R20 000 a month maintenance to his ex wife.
Judge Fikile Mokgohloa also ordered the man to pay maintenance of R5 000 to each of his children, a boy aged 13 and a girl, 10, for their school, medical, clothing and other needs.
The judge awarded the mother custody of the children and afforded the father visiting and telephonic rights, but rejected his claim that because Muslim marriages are not recognised in South African law, he should not be liable for maintenance.
The court heard that the marriage ended in November 2014 after the man pronounced a single talaq (divorce).
In her judgment, Judge Mokgohloa said a fundamental shift in all areas of law, including family law and the recognition of customary marriages, occurred when South Africa became a constitutional democracy in 1994.
“The status of Muslim marriages has since 1990 been the subject of continuing investigations by the South African Law Reform Commission. Despite the efforts of the commission as well as the draft Muslim Marriages Bill, which was published as long ago as 2000, there has been no change in the statutory law,” said Judge Mokgohloa.
She said previously Islamic personal law and other religious legal systems were not officially recognised as part of South African law.
“Neither was a provision made in statutory law for the recognition of marriages concluded in terms of Muslim law. This was due to the potentially polygamous nature of Muslim marriages. However with the advent of democracy in 1994, the courts started changing their approach to Muslim marriages. The change in attitude and approach manifested in cases such as Amod v the Multilateral Motor Vehicle Accidents Fund, where the Supreme Court of Appeal recognised a Muslim widow’s claim for the loss of support following the death of her husband in a motor vehicle accident.”
Judge Mokgohloa said the fact that a Muslim divorce had been concluded was no obstacle for the divorce trial and the constitutional challenges flowing from Muslim marriages to proceed.
“The imposition of restitutionary conditions (such as a ruling by a judge several years ago that a woman should repay all the maintenance received if the trial court found that her ex husband was not obliged to pay maintenance) is useless to a wife who approaches a court precisely because she is unable to maintain herself and her children pending the divorce actiion. I find it is unnecessary for the applicant (the woman) to prove prima facie the validity of their marriage. In my view the maintenance issue arises from a general duty of a husband to support his wife and children.
“Accordingly the applicant cannot be denied the relief sought by virtue of her Muslim marriage, irrespective of whether the respondent pronounced a talaq or not,” said Judge Mokgohloa.
Attempts by POST to obtain comment from the couple were futile.
The Women’s Legal Centre in Cape Town, which is seeking an order from the Cape Town High Court that President Jacob Zuma, the minister of Justice and Correctional Services and the minister of Home Affairs fast-track the legislation to have Muslim marriages recognised in law, said Judge Mokgohloa’s judgment is in line with other judgments pertaining to women married according to Islamic law.
The centre’s attorney, Hoodah Abrahams-Fayker, said in the absence of a legal framework recognising Muslim marriages, women were turning to the courts for relief.
She said her organisation wanted the law to be enacted to benefit all Muslim women faced with similar predicaments so that there would be no need for piecemeal legal challenges.