The court had to decide whether a woman married in terms of Muslim law, could apply for interim maintenance before divorce
THE Gauteng High Court, Pretoria has found that a woman who was issued by her now estranged husband with a Talaaq (divorce) did at this stage meet the definition of “spouse” and she is, for now, entitled to maintenance.
This is until the court had pronounced on the formal divorce proceedings.
The parties were married in terms of Islamic Law and they have three children. The wife left the matrimonial home and a few months later the husband issued her with a Talaaq. The wife subsequently instituted divorce proceedings.
The only issue the high court had to deal with at this stage was whether she is entitled to approach the court for interim maintenance pending divorce where a marriage concluded in terms of Muslim Law was unilaterally terminated by the husband with a Talaaq.
According to him, their marriage was already dissolved when the Talaaq was issued.
The husband contended that the effect of the amendment to the Divorce Act is that a recognised marriage is established when it is created in accordance with Islamic law. He argued that it terminates when it is ended in accordance with Islamic tenets.
Thus, he said, an Islamic marriage ends when a Talaaq is given. He said his wife cannot now rely on the Divorce Act to dissolve a non-existent marriage.
Counsel submitted that the consequence of the amendment of the Divorce Act and the recognition of Muslim marriages is merely that women can now approach the court for the termination of a marriage, while it could only be terminated by a husband in terms of Muslim law.
Judge Elmarie van der Schyff said the preamble to the Divorce Amendment Act 1 of 2024 clearly states that the purpose of the amendments is to insert a definition for a Muslim marriage.
This is to provide for the protection and to safeguard the interests of dependent and minor children of a Muslim marriage, to provide for the redistribution of assets on the dissolution of a Muslim marriage and to provide for the forfeiture of patrimonial benefits of a Muslim marriage.
The judge pointed out that the Act applies to all existing Muslim marriages, including a Muslim marriage which was terminated or dissolved in accordance with the tenets of Islam and where divorce proceedings have been instituted but not yet finalised.
Judge Van der Schyff said section 6 of the Divorce Amendment Act requires proper interpretation. The section may be interpreted that irrespective of the issue of a Talaaq, there is still a marriage that stands to be dissolved in terms of the Divorce Act.
But, the judge said, it is undesirable to now delve into a complex legal question that lies at the heart of the litigation between the parties. She said the court is only called on to decide on the interim maintenance issue at this stage.
She said the Divorce Act as far as it relates to Muslim marriages requires an extensive and in-depth interpretation of the Divorce Act and a court may even need inputs from interested parties, such as the Centre for Women’s Law.
In interpreting the law regarding interim maintenance, the judge found that the wife did at this stage meet the definition of “spouse” and she is, for now, entitled to maintenance.
This is pending the final word from the court who will preside over the divorce proceedings and who will delve into all the legal issues, including whether the parties are still married or not.
Cape Times
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