Durban - A Durban mother of two, who married and got divorced under Muslim customary law, is fighting for her marriage to be legally recognised and to obtain rights, including maintenance for herself and a legal divorce, under the applicable laws.
The woman - who cannot be named, to protect the interests of her children, who are 15 and 10 - launched her legal challenge in the Durban High Court this week in a “Rule 43” application in which she sought pre-divorce maintenance.
Courts have dealt with similar applications, but there are no binding decisions.
And although the SA Law Reform Commission finalised the Muslim Marriages Bill in 2003 - recognising Muslim marriages - this has yet to be put before the legislature.
Earlier this year the Women’s Legal Centre instituted legal action in the Cape in an attempt to have the bill enacted within a year, but in the meantime the Durban mother, with the assistance of her attorney, Retha Meiring, is doing it for herself, asking that her marriage be recognised under common law and the existing laws governing divorces and marriages.
In her affidavit which came before Judge Fikile Mokgohloa, the mom says that on a constitutional interpretation, these laws recognise the legal validity of marriages concluded under the tenets of religion and, if they do not, then they must be unconstitutional.
She said she married according to Islamic religion in 2000. She discovered her husband was having an affair and left him in November. The Islamic marriage was terminated when her husband pronounced a single valid talaq, at her request and in her presence.
During the course of their marriage he gave her R2 000 a month and paid for costs of the children, but after she moved out he paid nothing towards her or the children.
She said she required R25 000 a month for herself and R20 000 a month for the children. She also wanted him to pay for their medical expenses and schooling. She said she was unemployed, but he had plenty of money.
“He is never short of money … in August he bought a R60 000 fish tank. His present living expenses are negligible,” she said.
But in his opposing affidavit, the husband also claimed to be unemployed and said she was better off than he was because she had income from a property-owning trust, and drove an expensive car.
He said according to Islamic law, she was only entitled to maintenance for herself in the mandatory waiting period of iddah, about three months from the date of termination of the marriage. He had been advised by a Muslim theological body he had no obligation in Islamic law to support her as she had deserted him.
His advocate, Stuart Humphrey, argued she was not entitled to maintenance in terms of Rule 43. “As there is no guarantee that she will be successful in her divorce, there is no basis upon which she should succeed in this application,” he said.
Judgment was reserved.
The Mercury