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Divorce Rule 43 for Islamic law

I had a case recently where a client consulted me, who had been divorced in terms of Muslim law but was married in accordance with Islamic law and Sunni custom. She had instituted a divorce action against her husband wherein she sought inter alia an order declaring the marriage to be legally valid.

My client wanted to know from me whether she could bring a Rule 43 application against her husband. The Rule 43 is an application which can be brought before or during the divorce proceedings wherein a party can ask for interim maintenance and a contribution towards costs.

In answering my client’s query I looked up the recent case law. In the recent decision of AM v RM 2010 (2) SA 223 (ECP) the facts were nearly the same. The wife wanted to bring a Rule 43 Application against her husband seeking maintenance for herself and the parties’ daughter to be paid while the divorce proceedings were underway, as well as seeking a contribution towards her legal costs.

In the divorce action which the wife had brought against her husband in the above case, the wife challenged Section 11 (3) of the Marriage Act 25 of 1961 from a Constitutional perspective. Her argument was that Rule 43 applications should be extended also to include Islamic marriages.

In the above case the husband however argued that no marriage existed as recognized by the Marriage Act. He argued that his wife could not bring a Rule 43 application against him as Rule 43 applied only to “matrimonial matters”. The husband argued that there was no marriage as the parties had already divorced in terms of Muslim law, and also that a marriage according to Islamic law was not a marriage in terms of the Marriage Act.

In the above case the court found that even though South Africa's courts do not recognize an Islamic marriage as a marriage in terms of the Marriage Act, our courts can certainly enforce maintenance and other rights of spouses married by Islamic law. The court found further that the fact that a Muslim divorce had taken place did not prevent an application of Rule 43.

The court in the AM v RM case eventually ordered that “pendente lite” (while the divorce is in process) the husband had to pay maintenance to the wife at R 2500 per month. He furthermore was ordered to pay R3000 per month maintenance for the minor daughter and R 15 000 towards the wife’s legal costs. The court ordered that the costs of the application stand over for determination at the actual divorce hearing.

Therefore to answer the query of my client, and based on our latest case law, more particularly the decision of AM v RM, she is well within her rights to bring a Rule 43 Application against her husband. The fact that she was married according to Islamic law would be irrelevant.

In my opinion the decision in AM v RM is a legally correct one. The Constitution is the supreme law of the country and needs to be adhered to at all times. In my opinion it amounts to unfair discrimination if somebody married by Islamic law was not entitled to launch an application in terms of Rule 43 in a divorce action.

This article was written by Cape Town divorce lawyer, Peter M Baker

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