ISLAMIC MARRIAGE CONTRACTS: The hand of Aminah McCloud, professor of Islamic Studies at Depaul University, rests on a page of the Koran opened to a passage about marriage in her home in Chicago, Aug. 8, 2006. Muslim couples like McCloud and her husband have benefitedfrom a marriage contract that provides details and security to each individual should anything go wrong in the marriage. Negotiating the contract, "brings an air of reality and rationality to a process that is often fraught with emotion," says McCloud. Her own marriage contract insists her husband accompany her when she travels and that she's not obligated to cook. (AP Photo/Charles Rex Arbogast)

Durban - A 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 ex-wife 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 transgress 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.”

Muslim couples who feel their marriages are not working out should seek the intervention of Islamic scholars before taking the legal route.

This is the view of the United Ulama Council of South Africa and the Jamiatul Council of South Africa.

Imam Yusuf Patel, the secretary general of the Ulama Council of South Africa, urged couples to seek the assistance of imams and other Muslim experts to save their marriages.

“Taking the legal route is expensive and adds to the stress of the parties,” he said.

He said Shariah Law protected the interests of divorcees in that they ought not to be left destitute.

Asked whether it was not unfair that a Muslim man can have up to four wives simultaneously and a Muslim woman one husband, Patel said no.

“The man is permitted to protect the family and lineage. He is the head of the family and their protector and provider. Women are not permitted to have more than one husband simultaneously. But she can divorce and remarry,” he said.

Moulana Abdulah Khan, administration manager at the Jaimatul Council, said the council was of the view that Muslim scholars were adequately equipped to decide on Muslim divorces.

“Over the years the council’s scholars saved hundreds of Muslim marriages from falling apart. There is a far better, inexpensive way to resolve the marriage disputes,” he said.

“It takes years to build a home and a family. Don’t ruin the future, including that of the children, by making rash decisions which you may regret.”

AV Mahomed, chief trustee of the Juma Musjid (Grey Street Mosque) said Shariah Law stipulates that a man divorced from his wife is obliged to provide for her upkeep for the first three months.

“But it is wrong for a Muslim woman to be married to two men at the same time.

“That is also in accordance with Shariah Law.”

The law concerning religious marriages has evolved over the years.

In the 1983 case of Ismail v Ismail, the judge held that Muslim marriages do not enjoy the same status as marriages in civil law. The reason: the marriages are potentially polygamous and against public policy.

But in another case that year (Moola and Others v Aulsebrook and Others) the judge ruled that Muslim marriages were putative. The decision was good for children born out of Muslim unions. The law was changed accordingly, making children born out of such marriages legitimate.

In the case of Daniels v Campbell and Others in 2004, the Constitutional Court held that a Muslim spouse in a monogamous marriage had the right to inherit and to claim maintenance from a deceased spouse who died intestate.

In the 2005 case, Khan v Khan, a landmark decision was made. The court said in Muslim marriages, whether monogamous or polygamous, the partners owed each other a duty of support and had the right to claim maintenance from one another.

Newcastle teacher Rhia Moola initiated an application which was at one stage dubbed a landmark case against her ex husband, Nazir Jamaloodeen, to have their Muslim marriage declared valid.

Moola, however, did not pursue the matter fully in the Pietermaritzburg High Court.

Meanwhile, a Hindu marriage dubbed a test case in the Durban High court ended with local medical doctor Jailall Ramparsad victorious.

His estranged wife, Suchrita Singh, a university lecturer, had sought an order for their religious marriage to be declared valid.

Setting a precedent last year, a local Muslim mother of two, divorced from her husband, won her legal fight for the payment of maintenance.

The ruling by Judge Fikile Mokgohloa in the Durban High Court offered hope to Muslim women, even though Muslim marriages are currently not recognised in terms of South African law.

The court ordered the woman’s ex-husband to pay her R20 000 maintenance every month and R5 000 each month for their children aged 10 and 13.

The judge rejected the submission by the man’s counsel that because Muslim marriages are not recognised in South African law he should not be liable for the payment of maintenance.

“With the advent of democracy the courts started changing their approach to Muslim marriages.”

Laws governing religious marriage and divorce have evolved, and courts are changing their approach to Muslim marriages.