WUNRN
South Africa Women’s Legal Centre
South Africa - Landmark Court Ruling that Divorced
Muslim Woman Cannot Be Evicted by Ex, from Marital Home
Image: RantRave
On 28 August 2014, at
the Goodwood Magistrate’s Court under case no.2807/14, the Honourable
Magistrate Ms Page dismissed the application of Mr Adnaan Isaacs to evict his
ex-wife, Gadija Isaacs from the marital home, which they resided in during
their Muslim marriage.
He was married to her for 13 years in
terms of Muslim rites.
The marital home was registered only in
the Applicant’s name because their marriage was not legally recognised, whereby
no marital property regime applied to their Muslim divorce which would grant
her rights in terms of the proprietary consequences of the marriage.
In the application heard on 24 July
2014, the Applicant sought to evict his ex-wife as an unlawful occupier in
terms of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act
19 of 1998. He sought to evict her from the home, whereby she would be
separated from their two children born of the marriage, so that he could move
in with his new wife.
Gadija Isaacs was turned away by many in
her quest for help because she was advised that she had no right to oppose the
application because the Applicant was the owner of the property and she had no
rights arising out of her Muslim marriage because it was not a legal marriage.
As an organization that has as its main
purpose is to advance women’s rights and interests through strategic litigation
and advocacy, the Women’s Legal Centre(“the WLC”), felt that it was obligated
to come to the assistance of Gadija.
The WLC takes note of the subordination
and discrimination suffered by South African women whereby it strives in one of
its focus areas for the recognition of relationships that are currently not
legally recognised in South African law such as domestic partnerships and
religious marriages with a view to obtaining better protection for women and
equal distribution of marital assets upon the dissolution of the marriage or
relationship
The Women’s Legal Centre came to
the assistance of Gadija and opposed the application on her behalf challenging,
inter alia, the right of ownership of the marital home, which matrimonial
property regime applied, the fact that the marital home was bought with
proceeds from another home granted to them by the City where Gadija was
the joint Applicant, the interests of two minor children where she has been the
primary caregiver during the marriage and after the divorce, the
constitutionality of the non-recognition of the Muslim marriage, and the fact
that there is pending legislation regulating Muslim marriages.
The court acknowledged that there are
very important issues yet to be decided upon in forums other than this court
such as the non-recognition of Muslim marriages, the consequences of divorce
according to Muslim rites and the custody of the minor children.
The court took due consideration of the
fact that Gadija is a mother heading her household singlehandedly, having
regard to the interests of the children, that she was discriminated against in
obtaining joint ownership of their first marital home and that the
consequences of divorce according to Muslim rights is unfair, in terms of
which the court found that it would not be just and equitable for her to be
evicted from the property. The application for eviction was dismissed.
Gadija Isaacs is allowed to continue to
reside on the premises with her children!
With 2% of South Africans’ being
Muslim, this judgment acknowledges a significant portion of the South African
community and acknowledges the vulnerability and marginalization that Muslim
women can face by virtues of the non-recognition of their marriages.
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