A recent case in the Gauteng High Court has addressed the legal question concerning the Divorce Amendment Act 1 of 2024 within the context of Muslim marriages.
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In a significant ruling, the Gauteng High Court has confirmed the importance of interim maintenance rights within a Muslim marriage, even after a Talaq is issued.
In February, Judge Elmarie Van der Schyff ruled in favour of a woman going through a divorce.
The woman contended that she was entitled to interim maintenance and legal costs while the divorce proceedings were ongoing despite her husband issuing a Talaq - a Muslim divorce decree.
The woman's husband opposed the application.
He argued that the pronouncement of Talaq, under Islamic law had dissolved their marriage. He said this made her ineligible to claim relief as a 'spouse' under Rule 34 of the Divorce Amendment Act.
The judge ruled in the woman's favour, meaning she was entitled to the interim maintenance she sought.
The judge ruled in the woman's favour, meaning she was entitled to the interim maintenance she sought.
Senior law lecturer at the University of Western Cape's Department of Private Law, Dr Ashraf Booley, it is vital to remember that there were civil and religious processes that ran concurrently, and even in the civil divorce there were options available to a spouse.
"A Rule 43 interim application is an application done during the proceedings of divorce and it runs parallel with each other, so before the conclusion of the actual divorce proceedings this application can be brought," Booley explained.
He said according to Islamic teaching, there were further opportunities for the spouse to be further supported.
"When a Talaq is issued by the husband, the wife undergoes a three-month Iddah period. Some of them refer to it as a waiting period and that's also very misunderstood - that term of being a waiting period. It's not deemed a waiting period; it's deemed a reconciliation period," Booley said.
He added that while there are legalities that still need to be addressed with courts deal with Muslim marriages, the Judge in this case was very clear.
"The one party argues that by the Judge agreeing to this, a precedent will be created. And Judge Van der Schyff argues the point and says it's not a precedent that's being created. It is basically looking at each particular case individually based on its merits, whether it warrants the Rule 43 to come into play or not," Booley said.
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