Durban - In what lawyers believe to be a precedent-setting case, a Durban High Court judge has awarded interim maintenance to a woman married and divorced in terms of Islamic law.
The order by Judge Fikile Mokgohloa gives legal recognition to the marriage and paves the way for further court action the woman intends bringing to be lawfully divorced.
“To the best of my knowledge, this is a first in this division that a judge has made an order that she receive a Rule 43 (interim maintenance) award,” her attorney, Rheta Meiring, said.
“In her verbal judgment, the judge said that the Marriage Act applies. She dismissed, with costs, the respondent’s claim that a court has no jurisdiction over the matter because the marriage was not legal in terms of South African law,” she said.
“We are hopeful that this judgment shall be taken seriously by all concerned.
“This ruling shows that the judiciary will now pronounce and extend the common law and come to the protection of people who are excluded in terms of their religious marriages, but of course included in our constitution.”
The woman, who has two children, aged 15 and 10, was married according to Islamic law in 2000, but left her husband and moved in with her parents in November last year because, she alleges, she found out he was having an affair.
The marriage was terminated with her husband pronouncing a single valid talaq (divorce).
She said he had paid nothing towards her or her children.
He claimed that, according to Islamic law, she was only entitled to maintenance for herself for “the mandatory waiting period of iddah”, of about three months. He also claimed that she had deserted him.
Judge Mokgohloa ordered the husband to pay R20 000 a month maintenance for her and the children, and to pay for their reasonable educational costs, not exceeding R5 000 a child per month. She also ordered that he contribute R15 000 to her legal costs.
The divorce action is expected to be set down for hearing soon.