SJ v SE (not yet reported)

/ / News, 2018, Customary Marriage, Family Law


In casu, the Respondent sought, inter alia, an order declaring that Rule 43 of the Uniform Rules of Court does not apply to Islamic marriages and in circumstances where a Talaq has been issued.


The parties were married to each other under Islamic Law and 2 (two) children were born of the marriage. Subsequently, the Respondent entered into a polygamous marriage with another woman, CB, and a child was also born of this marriage. The Applicant and CB maintained separate matrimonial homes with the Respondent residing interchangeably between the two. The Applicant eventually vacated her matrimonial home in or during June 2016 and as such, alleged that she had been without maintenance since then. She had no formal qualifications, other than a matric, and has not been able to work since leaving the matrimonial home having had to leave her motor vehicle behind, required for her to travel to work, hence the reason behind the Rule 43 application. A week before the Rule 43 application was to be heard, the Respondent issued a Talaq against the Applicant.


The Respondent contended that the parties’ marriage had been dissolved by the issuing of the Talaq and that the Rule 43 procedure was incompetent because the parties were no longer married. The Respondent further contended that once divorced, in terms of Islamic Law, the Applicant would only be entitled to maintenance from him for a period equivalent to 3 (three) menstrual cycles, primarily because, during this period, the Applicant may not enter into another marriage. The Applicant questioned the Respondent’s bona fides for issuing the Talaq on the eve of the hearing of the Rule 43 application.

It was noted by the Honourable Madam Justice Modiba that in the case, Ryland v Edros 1997 (2) SA 690 (CC), the Constitutional Court held that an Islamic marriage is a contract from which certain proprietary obligations flow which therefore provides an adequate reason to impose some of the consequences of a civil marriage on an Islamic marriage such as the obligation of maintenance. In Khan v Kahn 2005 (2) SA 272 (T), it was held that partners in Islamic marriages owe each other a duty of support, just as in civil marriages and, therefore, have the right to claim maintenance from one another in terms of the Maintenance Act 99 of 1998. In Hassam v Jacobs NO and Others 2009 (5) SA 572 (CC), the Constitutional Court extended the right to maintenance of a woman married under Islamic Law to a woman who is party to a polygamous Islamic marriage. Finally, in AM v RM 2010 (2) SA 223 (ECP), a woman married in terms of Islamic Law successfully claimed interim maintenance from her husband for herself and her minor daughter pending a divorce action that she instituted in terms of the Divorce Act 70 of 1979 and in circumstances where a Talaq has been issued.


Further, counsel for the Respondent argued that this case was distinguishable from AM v RM and for that reason, the principle therein was not applicable. He argued that in AM v RM, the wife challenged the validity of the Talaq whereas here, the Applicant did not challenge the validity of the Talaq and therefore accepted that she had been divorced and that the remedy provided for in that Rule was no longer available to her. However, since there was a pending divorce action which was initiated before the Talaq was issued, whether the Talaq was of any effect given the circumstances under which it was issued was an issue for determination in the divorce action and as such, this argument lacked relevance in the current proceedings.


Although in AM v RM, the applicant disputed the validity of the Talaq, the court did not deem it necessary to resolve that dispute. Therefore, the status of a Talaq did not affect the court’s decision. Rather, there were similarities in the facts of the two cases that affected the court’s decision, namely the fact that there is a pending divorce action between the parties and that despite the pending divorce action, the respondent sought to oust the jurisdiction of the court in respect of the Rule 43 application on the basis that he has issued a Talaq. Therefore, the contention on behalf of the Respondent that the case of AM v RM found no application in casu was dismissed because:

  • although Islamic marriages are not legally recognised in South Africa, de facto the parties were married;
  • parties to an Islamic marriage owe each other the reciprocal legal duty of support regardless whether they are in a monogamous or polygamous marriage;
  • a Rule 43 application is a procedural mechanism to give effect to the reciprocal legal duty of support between the parties to a marriage, pendente lite, even where the validity of the marriage is in dispute;
  • the reference to the word “spouse” in Rule 43 of the Rules includes a spouse to a marriage concluded in terms of Islamic Law. Therefore, a Rule 43 application is applicable to marriages concluded in terms of Islamic Law; and
  • the issuing of a Talaq does not preclude a divorce action where a constitutional challenge regarding the legal effect of the Talaq is in dispute.



The submission on behalf of the Respondent that the applicant’s reliance on AM v RM was misplaced because it was factually distinguishable lacked merit. In AM v RM, the respondent raised a point in limine in a Rule 43 application brought by the applicant pending the determination of a divorce action. The respondent objected in limine that no marriage existed and that Rule 43 did not apply to the parties’ marriage. He relied on two reasons for this contention, the first that the parties were already divorced in terms of Islamic Law and the second, that a marriage in terms of Islamic Law is not a marriage in terms of the Marriage Act.


The Respondent and the Applicant owed each other the reciprocal duty of support arising from their Islamic marriage. Until the issue of the validity of the Talaq is determined, it was held that there is a matrimonial dispute between the parties that serves as the jurisdictional factor for the Rule 43 application. It was held further that, despite the issuing of a Talaq, due to the pending divorce action, the court had the jurisdiction to determine the Rule 43 application. The court held that the Respondent’s point in limine was dismissed and that the Rule 43 application was applicable to the matter.



This case sets another precedent for the importance of Rule 43 and its applicability to both monogamous and polygamous Islamic marriages. Despite the issuing of a Talaq by a husband, where a divorce proceeding is pending, the Rule 43 serves to protect the spouse in need of the interim maintenance.

Written by Michael Donno and supervised by Jennifer Stoler, 13 September 2018

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