Muslim maintenance fight
MUSLIM woman whose first marriage was apparently not annulled, wants her second divorced husband to fund her luxurious lifestyle.
According to papers filed in the Durban High Court, the woman is seeking an order for her divorce by Muslim rites to be declared valid.
She is also seeking an order that her ex-second husband, a wealthy businessman, pay her R50 000 a month maintenance pending the finalisation of the case. The mother of two and her ex-second husband cannot be named to protect their daughter, a minor.
She said in her affidavit that she lived a luxurious life before her second marriage collapsed.
Before divorcing in December last year the couple lived in a five-bedroomed property, which had a security guard at the gate. She and her former husband allegedly drove flashy vehicles worth about R1 million each.
These days the beauty therapist said she had to make do with a one-bedroomed flat and an allowance of R8 000 a month.
Her ex-husband has agreed that, as the father of their daughter, he is responsible for the child’s upkeep only.
The businessman, who has subsequently remarried, said since the marriage of his exwife and her first husband had not been annulled religiously, her first husband was responsible for her maintenance.
He said she was her first husband’s seventh wife.
Muslim men are permitted under Shariah or Islamic Law to have up to four wives only.
The matter could return to court for argument next month.
According to Shariah Law, when a man divorces his wife, he must provide maintenance for her for three consecutive months. That is referred to as Iddah. According to Imam Yusuf Patel, the secretary general of the United Ulama Council of South Africa, once the Iddah period is over, the responsibility of caring for the divorcee falls on either her father, brothers or sons.
If the divorcee does not have a father, male siblings or sons, then it will be up to charitable organisations in the community to ensure that she is not left destitute, he said.
Cape Town attorney Ighshan Higgins, who in 2004 featured in a landmark case in which the Constitutional Court ruled that his client, Fatima Gabie Hassam, had been discriminated against on the grounds of religion and marital status after her husband, who had two wives, died without leaving a will, said the Durban High Court application was an unusual one.
“There is no question that her ex-husband is responsible for their child’s maintenance. But claiming maintenance for herself (as much as R50 000 a month) is a different story. Her counsel will have to pull out all the stops to convince the court that she really deserves that amount of money. The floodgates may open if the court grants such an order.’’
While Muslim organisations like the Jamiatul Ulama Council in Durban said they preferred Muslim couples whose marriages are falling apart to seek the guidance of Imams (Muslim scholars) instead of running to the courts, Higgins disagreed.
“We live in South Africa and not in Muslim countries where Shariah Law is applicable. Nothing stops Muslim women in our country from seeking relief in our courts.
“Applications such as the one in the Durban High Court and others in recent years show that Muslim women are asserting their rights,” he said. “Our constitution protects the rights of the citizens in our country.”
The Women’s Legal Centre Trust in Cape Town is involved in a protracted legal fight in the Cape Town High Court to have Muslim marriages and divorces declared valid.
It is taking on the Presidency, the ministers of Home Affairs and Justice and Constitutional Development, the Speaker of the National Assembly, and the chair of the National Council of Provinces.
Organisations such as the Muslim Judicial Council and the Jaimatul Ulama Council have been joined as friends of the court.
The trust says that the Divorce Act No 70 of 1979 is inconsistent with sections 7 (2), (3) and (5), 10, 15 (1) and (3), 28 (2), 31 and 34 of the constitution.
This matter is back on the roll on September 18.
Deputy Minister of Foreign Affairs Fatima Chohan said in court papers that “If the State was to engage in such an exercise of developing Shariah to accord with the constitution through the enactment of legislation, it will, of necessity have the effect of depriving Muslim persons of the right to practise Shariah in its undeveloped and original form and will trangress into the terrain of freedom of religion.
“There is no constitutional obligation that legislation be enacted in order to recognise Islamic marriages as valid marriages.”