Divorced Muslim spouses afforded better financial protection
The status of Muslim Marriages in South Africa has, since 1990, been the subject of ongoing investigation and discussion by the South African Law Reform Commission. The Muslim Marriages Bill was published in 2000 (www.justice.gov.za/legislation/ bills/2010_muslim-marriages-bill.pdf, accessed 13-4-2015), but is still subject to intense debate in the Muslim community and as such has not yet been passed.In the meantime, Muslim couples who choose to marry according to Islamic law can only be afforded the protection of the South African legal system as it pertains to spouses if they, in addition, register a civil marriage.
While we anxiously await the coming into effect of the Muslim Marriages Bill, it is still generally accepted and understood that Muslim marriages are not yet formally recognised by our law, and as such, spouses in these types of unions do not fully enjoy the rights afforded to other spouses married in accordance with South African civil law. There has, however, been some progress in this field insofar as our courts and government have been taking steps towards the recognition thereof.
In 1983, in the case of Moola and Others v Aulsebrook NO and Others 1983 (1) SA 687 (N) it was decided that Muslim marriages are putative marriages – namely, marriages that are not automatically invalid and this meant that the children born from such marriages were no longer seen as being illegitimate. (This has obviously changed with the advent of the Children’s Act 38 of 2005, in terms whereof the concept of ‘illegitimate children’ has been done away with).
In 1997, in the case of Ryland v Edros 1997 (2) SA 690 (CC) it was decided that, as a Muslim marriage is a contract from which certain proprietary obligations flow, this was reason enough to impose some of the consequences of a civil marriage on a Muslim marriage, chiefly the obligation of maintenance.
In 2004, in the case of Daniels v Campbell NO and Others 2004 (5) SA 331 (CC) the Constitutional Court decided that a Muslim spouse in a monogamous Muslim marriage had the right to inherit and to claim maintenance from their deceased spouse in terms of the Intestate Succession Act 81 of 1987 and also in terms of the Maintenance of Surviving Spouses Act 27 of 1990.
In 2005, the Khan v Kahn 2005 (2) SA 272 (T) held that partners in Muslim marriages also owe each other a duty of support, just as in civil marriages and, therefore, have the right to claim maintenance from one another in terms of the Maintenance Act 99 of 1998.
Finally, in 2009, in the case of Hassam v Jacobs NO and Others 2009 (5) SA 572 (CC), the Constitutional Court held that the right to claim maintenance from a deceased spouse, as decided in the Daniels case, was also to be extended to polygamous Muslim marriages as well.
Divorced spouses have a right to pension interest
More recently the right to claim maintenance has been extended to include claims for interim maintenance during Muslim marriage divorce proceedings, namely, in terms of High Court r 43.
It has even been held that it is possible for a spouse married and divorced in terms of Islamic Rights to share in the other spouse’s pension interest on divorce.
Recently, the Western Cape High Court held, in the as-yet unreported case, Rose v Rose (WCC) (unreported case no 14770/11,13-8-2014), that Faiza Rose, a nurse from Simon’s Town who was married to one Faizel Rose for 20 years, could claim for maintenance and a share of her former husband’s pension.
This is ground breaking as when Faiza married Faizel under Islamic law in 1988 he was legally married to another woman. That marriage ended a few months later, and his marriage to Faiza was annulled by the Muslim Judicial Council in 2009.
Prior to this judgment, spouses in Muslim marriages were unable to claim their share of the assets of their marriage to their former husband’s if their husband was already married to another woman at the time that he married her. However, in the case of the Rose judgment the court held that Muslim men often enter into more than one marriage simultaneously, that marriages can be civil, religious or customary, and that the mere fact that a Muslim marriage is polygymous should not prejudice the spouses to the union, and this brings the case law in line with that pertaining to customary marriages.
Developments by government
Further to this almost tacit recognition by our courts, in May 2014 the Department of Home Affairs initiated a project in which more than 100 Muslim Clerics or Imaams were trained, in a pilot project, to officiate over unions that will be recognised by law. These clerics will, in effect, be marriage officers who will be authorised to issue marriage certificates in terms of South African law. This means that those Muslim spouses who wish to conclude a civil marriage at the time of their Muslim marriage may do so, but both spouses will have to consent to such civil marriage. Thus this is not in itself a recognition of Muslim marriages, despite what has generally been reported in the press, but is most definitely a step in the right direction.
Further development as evidenced by a recent case study
Mrs S was married in accordance with Islamic law to Mr S. The matter was heard in the Johannesburg High Court before Andrews AJ as an unopposed divorce (S v S (GJ) (unreported case no 2014/05928, 26-9-2014).
Mr and Mrs S were married in 2002 in terms of Islamic rights. The parties never concluded a civil marriage. They had one child born of their Muslim marriage who was nine years old at the time the proceedings were instituted.
In or during the beginning of January 2014, the marriage relationship between them irretrievably broke down.
Mr S refused to grant Mrs S a Talaq (according to the Oxford Dictionary, ta-laq (in Islamic law) is defined as ‘divorce effected by the husband’s enunciation of the word “Talaq”, this constituting a formal repudiation of his wife’ (http:// www.oxforddictionaries.com/definition/ english/talaq, accessed 13-4-2015)), which is required to terminate the marriage in terms of Islamic rights, or to pay her any form of maintenance and as such, she approached the attorney and it was decided to issue a summons, in terms whereof Mrs S requested that a decree of divorce be granted, that she be paid maintenance by Mr S and their ‘joint estate’ be divided.
The summons was issued during February 2014, and the process went so far as a trial date being obtained.
During this period, the parties, duly represented, managed to conclude a settlement agreement.
The settlement agreement
The settlement agreement contained all of the usual terms pertaining to civil divorces, including but not limited to, care and contact to the minor child, maintenance and division of patrimonial assets. What was interesting in the agreement was that it provided that the court would grant a decree of divorce incorporating the settlement agreement; and it further recorded that Mr S would, as soon as reasonably possible after the granting of the decree of divorce, issue to Mrs S a Talaq.
The court order
The order handed down by Andrews AJ stated, inter alia, as follows – the ‘marriage is dissolved’; and
a prayer that Mrs S had inserted relating to a partnership agreement having been concluded between herself and Mr S, which stated as follows, was upheld – the Plaintiff (Mrs S) submits that on or about 26 October 2002, the parties, acting in their personal capacities, entered into a partly oral, partly tacit agreement, the material express[ed] alternatively tacit terms whereof were as follows:
- The parties agreed to cohabit as man and wife;
- The parties would have a joint estate; and
- The parties agreed that any profits arising out of their cohabitation and relationship would be divided between them equally.
It is interesting to note that at the hearing of the unopposed divorce, the aforesaid relief was in fact not requested by either party, and all that was sought was a decree of divorce incorporating the settlement agreement.
It is further interesting to note that the wording contained in the order that was handed down was ‘the marriage is dissolved’ and not ‘the decree of divorce is granted’. It is, however, of interest that the court used the term ‘marriage’ at all.
Opinion as to the reasoning of this court order
It is my view that the reasoning behind this judgment was that the court obviously recognised that a marriage between the parties did in fact exist.
The fact that the ‘partnership’ was confirmed, is, in my belief, the court’s way of inferring that the regime that should apply to Muslim marriages, in the absence of evidence to the contrary, is that of one of in community of property.
Thus, what this judgment seems to infer is that these types of religious marriages should be recognised, and further that if they are so recognised, they should be subject to the same regimes that apply to all other forms of civil marriage in South Africa, including customary marriages, namely, that if one does not conclude an antenuptial contract, the marriage is automatically one of community of property by operation of the law.
Implications of this court order
This judgment has, in my opinion, far reaching implications. It is clearly yet another step to formally recognise Muslim marriages, and bring them in line with the South African Constitution.
What, to my mind, is the most important aspect of this judgment is that it may afford protection to those members of the Muslim community who are financially prejudiced by being unable to share in their spouses estates, and may go that little bit further to help prevent such individuals from being essentially held hostage in marriages from which they wish to escape but cannot because of the rules relating to a Talaq or the fear of being unable to financially survive alone.
Words: Megan Harrington-Johnson, Partner at Schindlers Attorneys, acted on behalf of the plaintiff (Mrs S) in the above matter