Rule 43 and Muslim divorce

Where law and culture intersect

Muslim marriage has been in the news recently. In June 2022, the Constitutional Court declared the Divorce Act unconstitutional because it failed to recognise Muslim marriages that have not been registered as civil marriages as valid marriages. Parliament was ordered to rectify the legislation to comply with the Constitution within two years. Currently the Divorce Amendment Bill is now before the National Council of Provinces. The bill will allow for a definition for a Muslim marriage to be included in the Divorce Act. A Muslim marriage is a marriage entered into or concluded in accordance with the tenets of Islam. The aim is to safeguard the interests of dependent and minor children of a Muslim marriage, ensure fair and equitable redistribution of assets on the dissolution of a Muslim marriage, and do away with the patriarchal structure of Muslim marriage that favours men and leaves women vulnerable and often severely disadvantaged.  What is the current situation with Rule 43 and Muslim divorce? We explain.

Rule 43 – interim maintenance

Rule 43 of the Uniform Rules of Court is an administrative procedure that allows an order for interim maintenance to be made by the court during divorce proceedings. It is intended to provide support during divorce proceedings – usually to a wife and children – until the action is finalised. At this point the order lapses and any maintenance order resulting from the divorce decree takes effect. Interim maintenance is intended to protect the interests of children and may also include custody arrangements as well as financial support.

Women married in accordance with Sharia law are entitled to Rule 43 maintenance. The spouse in a Muslim marriage has the same rights as any other divorcing spouse in a civil marriage. The Recognition of Customary Marriages Act created the right to post-divorce spousal maintenance that was not present in customary law, putting the rights to spousal support of customary wives on equal footing with wives in civil marriages. This duty of support was extended to Muslim marriages not sanctioned by civil marriage. A Muslim spouse in a monogamous marriage can apply for spousal maintenance in the event of divorce, and this includes Rule 43 maintenance.

Cultural complexities

However, there are particular cultural complexities surrounding interim maintenance in the context of Muslim marriage. The intersection of Rule 43 of the Uniform Rules of Court and its application to Muslim divorce is controversial. Historically, the non-recognition of Muslim marriages posed significant challenges for Muslim women seeking divorce. The change to the legal landscape represented by the amendment to the Divorce Act is welcome progress for women’s rights and human rights in general. But there are still rough waters to navigate.

The recent case of R.B v S.A.E.R involved Muslim marriage and Rule 43 maintenance. The parties involved were married in terms of a Muslim marriage on 20 December 2016, and the marriage was not solemnised under the Marriage Act of 1961. Following their separation on 25 July 2022, the respondent pronounced One Talaaq-E-Baain (a form of Islamic divorce) on 17 October 2022, thereby obligating him to maintain the applicant for three months in accordance with Islamic law. In February 2023, the applicant instituted an action for divorce, seeking a decree of divorce and ancillary relief, including maintenance. The applicant contended that the marriage was one in community of property in terms of an oral agreement and, alternatively, if it were found that she was married out of community of property, she should be entitled to claim an order for redistribution in terms of section 7(3) of the Divorce Act, 70 of 1979. Pending litigation, the court ordered the respondent to retain the applicant on her current medical aid scheme, pay the applicant’s car insurance and vehicle tracker, and pay R10,000.00 per month to the applicant from 15 October 2023 onwards.

Aligning principles with law

The application of Rule 43 to Muslim divorce highlights the responsive nature of South African family law, demonstrating sensitivity to different cultures and religions. However, this case highlights the need for continued dialogue and reform to better serve the unique needs of various communities, particularly in aligning Sharia principles with the broader South African legal context. The application of Rule 43 in Muslim divorce is not without its complexities. The differences between Sharia law and South African law, particularly regarding maintenance and child care, require a detailed and nuanced approach. In Islamic law, maintenance obligations typically extend only to the ‘iddah’ period (a prescribed waiting period post-divorce). Rule 43 might require someone to pay maintenance until the divorce is officially finished, which may be more prolonged than the iddah period. Moreover, the division of marital assets and arrangements for child care and contact in Muslim divorce requires balancing Sharia principles with the standards set by South African law.

We welcome the proposed Divorce Amendment Bill and always strive to achieve fair outcomes for all our clients, however they were married. But we recognise that the application of Rule 43 in Muslim divorce illustrates how complicated it is to integrate different legal and cultural systems. It highlights the need to keep improving and understanding the laws, especially where religious and non-religious laws meet.

We can help

At Cape Town Divorce Attorneys, we are experts in divorce and family law. If you need advice about legislation on Muslim marriages or divorce, we can help. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

Further reading:

• Interim maintenance – how to use Rule 43 in divorce proceedings
• Rule 43 and Muslim marriages
• Reforms to marriage laws on the way
• Sharia marriages: SCA declares marriage act and divorce act inconsistent with constitution
• Muslim Marriages – Judgement a victory for women married under Sharia law
• ConCourt Recognition of Muslim Marriage a Victory for Women and Children’s Rights

Simon Dippenaar

http://www.sdlaw.co.za

Cape Town attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

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