Mr and Ms Rose got married to each other in terms of Islamic law (“the Islamic marriage”) in 1988.
At the conclusion of the Islamic marriage, Mr Rose was already married to another person in terms of South African law (“the civil marriage”).
The civil marriage was terminated in 1998 and the Islamic marriage was terminated in 2009.
Ms Rose approached the court to claim a monthly amount of maintenance from Mr Rose and part of his pension interest; this is in terms of the Divorce Act 70 of 1979 (“the Act”).
What the court said:
The term “marriage” is not defined in the Act and is not limited to civil marriages. It may include a marriage entered into in terms of other laws (Islamic law) which may be in conflict with the South African law.
It is well-known that Islamic marriages are not recognised as legal marriages in South Africa and that such marriages do not have the same protection and consequences provided to civil marriages. As a result, the Islamic marriage between Mr and Ms Rose was invalid.
However, the South African law has been developed in such a way that spouses from Islamic marriages have received limited recognition. This means spouses can inherit from a deceased estate and receive maintenance that may be provided to surviving spouses.
Conclusion:
The invalidity and termination of the Islamic marriage does not prevent Ms Rose from claiming maintenance from Mr Rose and part of his pension interest.
The court held that an Islamic marriage should be considered to be a “marriage” in terms of the Act and that Ms Rose is able to institute her claims.
