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Muslim mom wins maintenanc­e case

- LOGAN GOVENDER

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.

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