Durban - An unusual case of polyandry - a woman with more than one husband - is before the Durban High Court in an application in which the woman is trying to get maintenance from her most recent “husband” who is arguing that, unbeknown to him, she was still married to someone else.
The matter came before the court as a “Rule 43” application which, in terms of the Marriages Act, entitles separated spouses to claim maintenance before the finalisation of their divorces.
The case involves an unregistered Islamic marriage which is not covered by the act. However, last year a judge awarded what was believed to be the first interim maintenance order in an Islamic divorce case which was seen as precedent-setting.
What makes this application different is the allegation of polyandry and the argument by the latest husband that the man she was first married to is responsible for her upkeep, not him.
In her affidavit the woman - who cannot be named to protect the identity of her son, fathered by her first husband, and her daughter by her second - says the Marriage Act is applicable to her. She wants her Islamic marriage to the wealthy businessman in March 2013 declared legally valid and that she is entitled to a “legal divorce”.
In the meantime, she wants maintenance of R50 000 for her and her daughter, that she and both children be kept on his medical aid, a car and other expenses relating to the children.
She says when they were married they lived in a huge five-bedroomed house with a security guard at the gate and they both drove cars worth more than R1 million.
“He regularly bragged that he earned R500 000 a month. He has other properties worth R5 million and there is a family trust.”
Since their separation in December last year, she has lived in a one-bedroomed flat with her children and ekes out a living as a beauty therapist, with only an R8 000 contribution from him every month.
She claims she is entitled to her old lifestyle. But her ex - who is also married civilly to someone else - says their marriage was never valid and his only financial responsibility is to his daughter.
He says he was aware that she had been married before but believed this had been declared invalid by the Jamiatul Ulama (Council of Muslim Theologians) because the man had been married to seven other women, which was forbidden by Islamic law.
“She deliberately omitted to inform me that she had, in fact, registered that marriage in terms of civil law and was thus legally married.
“Under Islamic marital jurisdiction Muslim men are allowed to practice polygamy and can have up to four wives. Polyandry is not permitted,” he said in his affidavit.
The first husband did not pay any maintenance or contributions to his son “and she should be seeking an order against him, not me,” he said.
He described the expenses she was claiming as “ludicrous” and “fabricated” and “nothing more than a wish list”.
The application has been adjourned for lawyers acting for both parties to draft written submissions on whether Rule 43 applies.
It will be set down for argument soon.
The Mercury