Cape Town - A Western Cape High Court judge has ruled that a woman who went to court to prove she was still married to her husband at the time of his death in 2012, may access more than R19 million in maintenance that her now deceased co-wife had tried to prevent her from claiming.
Judge Yasmin Meer made the ruling after a complicated trial spanning 19 days and involving 13 witnesses, including Muslim scholars and which involved interpretation of Shariah law as well as civil law.
The matter dealt with whether the woman was still married, according to Islamic Shariah law, to her husband when he died in July 2012 and was accordingly a surviving spouse in terms of the Maintenance of Surviving Spouses Act.
The court heard that the November 1992 marriage was solemnised in accordance with Islamic Shariah law and that two children were born of the marriage.
In 1997 the man took another wife, whom he also married according to Islamic law, and the three lived together in an Islamic polygamous marriage relationship.
The man died in July 2012 and his first wife filed a claim against his estate in March 2014, for maintenance as a surviving spouse.
The second wife, who was the executrix of the estate, told the first that her claim would not be entertained because of a Marriage Annulment Certificate issued by the Paarl Muslim Jama’ah, which stated that the man had issued his first wife with a final talaq (divorce) in August 2000.
The first wife approached the Muslim Judicial Council (MJC) for a ruling on the status of her marriage. Upon investigation, the MJC, issued a fatwa in November 2015, to the effect that she was still married to the man when he died.
The MJC based the decision on the fact that there were no witnesses to the issuing of a final talaq as required in accordance with Islamic Shariah law. Shariah requires proof to be given by two men.
The doubt about whether or not a talaq had been issued arose due to an incident in 2001 during an argument between the husband and the first wife in which he threatened her with divorce, but never uttered the word talaq.
She argued that a threat of talaq does not constitute a divorce in terms of Islamic law.
Later that year she was approached by an imam who told her that her husband intended to issue a talaq, however when she approached her husband, he told her to ignore the imam.
In 2003, she was again approached by the same imam with the same message but this time, he said he was acting on the instructions of the second wife who was not satisfied with being number two.
When she again asked her husband what was going on, he again shrugged it off and the two continued to share a marital home and a bed until he died.