End of a legal loophole: Muslim marriages and access to interim maintenance

An important new judgment will bring relief to many after great uncertainty about what South Africa’s updated divorce laws mean in practice for wives in Muslim marriages.

Clarifying the role that talaq (divorce under Muslim marriage laws) plays in the South African legal divorce system, three judges of the high court were unanimous: talaq did not affect the wife’s right to a civil divorce, nor for interim financial protection until divorce proceedings are complete.

The judgment comes in the wake of several recent cases where husbands, clinging to tradition, have challenged the right of the civil courts to order interim maintenance and other financial protection – and even to finalise the divorce. Unless this new decision is overturned on appeal, which seems most unlikely, it will prove a major hurdle for husbands trying to bypass the civil law by citing religious tradition.

Read the judgment here:

Women married under Islamic law have long been excluded from the security and protection that other women benefit from at the point of divorce – they were unaware that the court could order their husbands to pay interim maintenance, pending finalisation of their divorce.

In 2024, the Divorce Act was changed to ensure that women married under Islamic law would have access to the same court-ordered protection at divorce as any other woman. Many husbands in Muslim marriages viewed the changes with suspicion, arguing that it was contrary to their traditions. Some have even tried to circumvent the law.

Typically, in such a case, if a wife gets legal help and issues a summons for a divorce, the husband will tell the judge that he objects to the civil courts getting involved. He will then advance an argument that would undo what the law is trying to achieve if the court were to accept it.

Full bench considers husbands’ argument

So far, the courts have not needed to deal with this argument head-on. In these cases, despite the husband’s objections, the judges involved have considered and granted the wife appropriate interim protection and have deferred the broader question raised by the husband until the divorce is fully heard.

This has been the pattern in all the cases except one, the matter of ES v HZA, where the judge refused to grant interim relief to the wife, pending the full hearing of the divorce.

The judge’s refusal ended up before a full bench (three judges) of the high court. Those judges have now delivered a unanimous appeal decision dealing squarely with the broader objections, based on Islamic law, raised by traditionalist husbands.

ConCourt decision that changed divorce laws

In 2022, the Constitutional Court heard a landmark case during which the parties canvassed the need for couples in Muslim marriages and subsequent divorces to have the same protections as those in any other marriage recognised by the state.

This was not the case at the time, and many spouses in Muslim marriages suffered as a result. In the end, the judges of the Constitutional Court decided that the law had to be changed so that those marrying under Muslim law would have the same protections as anyone else.

The court said that the exclusion of Muslim marriages from the civil marriage laws affected women in particular. It deprived women, married under Islamic law, and their children, from the protections that the Divorce Act was specially designed to ensure.

The judges added, ‘This often leaves them destitute, or with very small estates, upon Talaq. This is exacerbated by the fact that they are often left with the responsibility of caring for children.’

It was partly to ensure a solution to this problem that the highest court ordered that both the Marriage Act and the Divorce Act be changed to ensure that women in Muslim marriages would have the same protection as other women.

Traditionalist husbands

This brief background on the Constitutional Court’s decision shows what the changes were intended to achieve, namely that couples married under Islamic law, especially Muslim wives who are usually the more financially vulnerable of the spouses, would be protected at divorce in the same way as spouses in other marriages and divorces recognised by the state.

Yet in several cases argued in the courts since the law has changed, husbands in Muslim marriages have raised an argument with the potential to undo these efforts.

Typically, such a husband, objecting to the jurisdiction of the amended civil divorce laws, will argue that since he has already issued talaq (the traditional words, spoken by a husband, that have the effect of ending a Muslim marriage), no marriage now exists. And the civil courts can have no role in terminating a marriage that is already non-existent, he will say.

Equally, he will argue, the woman involved cannot ask the court for interim maintenance pending finalisation of the divorce since, after talaq and the three-month waiting period (iddah) has expired, the couple are already divorced. Obviously, such a husband will say, the courts cannot finalise an already finalised divorce. In addition, there is “no pending divorce” and, finally, the woman involved cannot even be regarded as “a spouse” for the purpose of an interim maintenance order since after the pronouncement of talaq, she is no longer married.

The husbands who have used this argument apparently believed it offered a way around the newly amended civil divorce law.

If the courts were to accept this argument, it would mean that a husband could continue, as before, to end a marriage without the protections that a civil divorce would ensure for his wife and children. The intentions of the Constitutional Court would be undone and women in such marriages would be excluded from the help that the highest court said they should be able to access.

What the new full bench judgment said

What makes this judgment different is that the three judges dealt with the arguments put up by the husband full-on.

For example, this husband (like the husband in other cases) argued that if he issued a talaq before the wife issued summons, then Islamic law would apply. This was not correct, said the court. The protections of the civil courts applied regardless of whether the wife began divorce proceedings in the civil courts before talaq and divorce under Islamic law, or whether the husband pronounced talaq first.

They stressed that the stated purpose of the change to the law was “to allow Muslim women the benefits of the Divorce Act despite of and in the face of, a talaq; not in the absence of a talaq.”

There could be no doubt that the amendments were intended to protect women and children “from any unconstitutional consequences of a talaq”. And any interpretation that imposed Islamic law if talaq had been pronounced, would be illogical.

The three judges said the Constitutional Court had made it clear that it was dealing only with the civil rights of Muslim women and children at divorce, and that it was not required to decide whether Islamic law, more broadly, “passed constitutional muster”. This meant, said the full bench, that Islamic law was constitutional “only to the extent that the effects of a talaq do not deprive a wife and children of the rights and benefits” of the Divorce Act. “Thus, notwithstanding the talaq, a wife may still seek civil divorce,” the court held.

The three judges also said they want to finally end the argument about talaq and rule 43 – this is the rule under which a court is able to order interim maintenance and other financial help pending the final divorce. The husband in this case, like others in recent similar cases, had argued that once talaq was pronounced, rule 43 could not apply. But the judges found that the amended Divorce Act now expressly affords Muslim women and children the right to interim protection of rule 43, “under the Divorce Act itself”.

The court made two other important points. It held that when rule 43 spoke of a “spouse”, that term would “expressly” include a Muslim woman even after her marriage was ended under Islamic law. It also found that a woman married under Islamic law could not waive – give up – the rights granted her under the Divorce Act.

And, the court said, if the husband believed that applying the Divorce Act led to results that were unfair to him, the law allowed him to make that argument to the judge presiding in his case. This was because, in hearing a divorce, courts always had to consider justice and fairness to both parties involved.

What happens next?

The emphatic decision by the full bench seems likely to curb Muslim husbands who want to get around the law, because it clarifies that the talaq argument has no constitutional bearing on the matter. If, however, determined husbands with deep pockets continue to claim that they do not fall under the Divorce Act because they have pronounced talaq, the new decision will provide strong precedent for other high court judges to dismiss the argument.

What about an appeal? The new decision is based so closely on the Constitutional Court’s own view of the matter, expressed in a judgment that led to the divorce laws being amended in the first place, that it is very difficult to imagine how an appeal could be successful. DM

Kaamilah Paulse was admitted as an attorney in 2002 and joined Herold Gie Attorneys in 2014. She is the CEO and head of the firm’s Family Law Department.