R v R and Other

Facts of the case:

  • 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.
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