Islamic marriages were recently in the spotlight when the Constitutional Court declared some provisions of the Divorce Act 70 of 1979 and other legislation unconstitutional in so far as they failed to recognise these marriages. The Divorce Act previously did not recognise Islamic marriages, which meant that parties to these marriages could not approach the court for a divorce decree.
This did not mean that these couples could not dissolve their marriages. The Islamic religion, under which the marriage is solemnised, has systems in place to facilitate the dissolution of the marriage, which include the talaq and the khula. However, the exclusion of Islamic marriages from the Divorce Act deprived the couples of the benefit of the court's intervention to ensure fairness in the process and outcome of the divorce and to protect the interests of the women and children involved.
The effect of the Constitutional Court ruling is that a spouse in an Islamic marriage can now approach the court to institute divorce proceedings. This article addresses the pressing question of whether the talaq and the khula have a role to play in the divorce court proceedings.
What is the difference between a talaq and a khula?
As already referred to above, these are systems to dissolve a marriage under the Islamic religion. In general, the talaq is the unilateral right of the husband to end the marriage with his wife through a verbal or written declaration that the marriage is over. This declaration may also be confirmed by the Jamiatul Ulama (the Council of Muslim Theologians). The khula, on the other hand, is where the wife initiates the end of the marriage and typically requires her to transfer property or provide other forms of consideration to the husband in return for the dissolution of the marriage.
Is the talaq or khula required to initiate divorce proceedings in court?
In short, the answer is no. It is not a requirement that there be a talaq or a khula before allowing a spouse to apply for a divorce decree under the Divorce Act. Therefore, not having a talaq or a khula will have no effect on a spouse's right to institute divorce proceedings in court. Either of the spouses in an Islamic marriage may initiate the proceedings.
It is also important to note that the issuing of a talaq or khula does not mean that the divorce court loses jurisdiction simply because the religious dissolution took place first. This was exactly the point of contention in E.S v H.Z.A (A2023/062743) (2026) ZAGPJHC 262, where the High Court had to decide on the impact of a talaq issued by the Jamiatul Ulama on the divorce court's jurisdiction and the wife's right to approach the court.
What happened in this case is that the parties entered into an Islamic marriage in November 2020 and the husband subsequently issued a number of talaqs. The Council of Muslim Theologians confirmed that an irrevocable final talaq had indeed been issued. The wife later approached the High Court and instituted civil divorce proceedings, which included an application for interim relief of maintenance. The High Court initially held that it had no jurisdiction to hear the matter because she was no longer a spouse since her marriage was already terminated under the Muslim religious law.
However, the wife took the matter on appeal and the full bench of the High Court overturned the decision and held the following:
> The Divorce Act applies to an Islamic marriage whether it is already dissolved with a talaq or not. A spouse can still institute divorce proceedings under the Divorce Act after a talaq and apply for relief for interim maintenance.
> There is no “first come first served” principle which determines which system should apply that a spouse who wishes to enjoy the protection of the Divorce Act must rush to institute proceedings in the court before a separation is issued under the religious laws.
In the circumstances, the presence or absence of a talaq or khula has no bearing on the spouses' right to approach the courts for a divorce decree under the Divorce Act.
Can women in Islamic marriages waive their right to approach a court?
The courts have ruled that a spouse in an Islamic marriage cannot contract out of the Divorce Act and, therefore, they cannot waive their right to approach a divorce court. This means that women cannot be requested to waive the right and an agreement purporting to waive this right would not be enforceable.
Conclusion
The legal developments referred to in this article ensure that women in Islamic marriages are allowed to approach the court for a divorce, which includes the civil remedies and protections provided for under the Divorce Act and related legislation (for example, interim maintenance, child custody, and division of assets). This right to approach the courts does not require a prior talaq or khula to be issued, however, it also does not cancel out the right to practice one's religion. The recognition of Islamic marriages under the Divorce Act represents a significant step toward ensuring equality and protecting the rights of women and children to ensure that there is a balance between fairness and justice.
Did you know… A spouse in an Islamic marriage can now approach the court to institute divorce proceedings under the Divorce Act.