A polygamous marriage is where somebody marries more than one person. This is legal when parties are married according to Islamic Rights and various other customary marriages, and occurs frequently in South Africa. The Maintenance Act 99 of 1998 requires a spouse to maintain an ex-spouse.
In Ryland v Edros, 1997 (2) SA 690 (C) it was decided that a monogamous Muslim marriage was recognised as a valid contract that is enforceable under the Constitution. However we need to ascertain the validity of a claim for spousal support in circumstances where there is a polygynous Muslim marriage.
Prior to 1994, Polygynous marriages, regardless of where they were contracted, were void in terms of South African law, although they may have had certain legal consequences. Since the form of an Islamic marriage does not preclude further simultaneous marriage(s) by the husband, South African law regarded it as potentially polygynous, even if neither party had more than one partner, and even when the parties intended their marriage to be monogamous.
The final Constitution appears to guarantee the right to freedom of religion all South Africans, which entrenches the right to live according to the customs
and traditions prescribed by those religions. The Constitution, therefore, sets the groundwork for the recognition and application of religious family law systems. The Constitutional Court specifically considered legal recognition and protection of Muslim marriages in two decisions, Daniels and Hassam. These cases dealt with the
entitlement of spouses in both monogamous and polygamous Muslim marriages to inherit under the Intestate Succession Act and to receive benefits under the Maintenance of Surviving Spouses Act, legal rights they had been traditionally denied. In both cases, the Court found that denying these legal protections to spouses in Muslim marriages was unjustifiable discrimination on the grounds of gender, marital status and religion, and therefore unconstitutional.
In Daniels, Sachs J noted that partners to Muslim marriages have been traditionally denied equal protections under the law, a legal situation that is no longer tenable under the Constitution. We look now to a decision that directly relates to the question of the duty of a spousal to provide maintenance in a Muslim marriage. In the decision of Khan v Khan 2005 (2) SA 272 (T) the court faced the question as to whether the Maintenance Act, more specifically the provisions of Sec 2(1), the legal duty to maintain an ex-spouse, also extends to polygamous marriages. The court decided that partners in a Muslim marriage, married in accordance with Islamic Rights, whether monogamous or not, were entitled to maintenance, and that the Maintenance Act therefore also applied to these marriages.
The Judge in this case, relied heavily on the constitution when arriving at his decision. This is because the Maintenance act emphasises a fair and equitable system based on the rights enshrined in our Constitution.
In arriving at its decision in the abovementioned case, the court referred to the decision in Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC). In this case the court said that in determining maintenance the courts should look at how others perceived the couple and whether family responsibilities were shared. The court explained the purpose of “family law” as being to protect vulnerable family members and to ensure fairness in disputes that arose at the end of relationships.
The judicial officer when delivering his decision expressly stated, “In any event, the purpose of the Act would be frustrated rather than furthered if partners to a polygamous marriage were to be excluded from the protection the Act offers, just because the legal form of their relationship is not consistent with the Marriage Act. I am therefore of the opinion that partners in a Muslim marriage, married in accordance with Islamic rites (whether monogamous or not) are entitled to maintenance and thus fall within the ambit of the Act”
However simply falling within the jurisdiction of the act, one is not guaranteed success when stating a claim under same. The court has specific requirements that must be met in order for once to succeed in a claim for spousal support from an ex. We see this from the same Khan case, mentioned above whereby the court stated “The common-law duty of support is a flexible concept that has been developed and extended over time by our Courts to cover a wide range of relationships…The questions that Courts consider in determining whether a particular relationship gives rise to a duty of support include: 1) Does the complainant require financial aid 2) Does the relationship between the two parties create a duty to maintain?”
It can therefore be said that every person has a right to lodge an application for maintenance regardless of their religious beliefs, however the courts base their decisions primary on a system of the applicants need for maintenance versus the affordability of the other party to pay for same.
In the current situation, the parties were married to each other in Islamic law on the 1st December 2010. However Faizal only started paying spousal support a year later, being December 2011. The amount payable was R50 000 per a month towards maintenance. Due to an extra-marital affair by Faizal, Nazira request dissolution of the marriage. During August 2013, the credit card was removed from Nazira. She was then asked to vacate the marital home, which she did at the end of September 2013.
In making an order the Court will primarily weigh the need of the person to be supported against the resources of the person who is called upon to provide the maintenance.
Section 7(2) of the Divorce Act confers discretion upon a court to make a maintenance order which it finds just, having regard to the following factors:
(a) The existing or prospective means of each of the parties;
(b) the respective earning capacities of the parties;
(c) the financial needs and obligations of the parties;
(d) the age of each of the parties;
(e) the duration of the marriage;
(f) the standard of living of the parties prior to the divorce;
(g) the conduct of the parties insofar as it may be relevant to the breakdown of the marriage;
(h) any redistribution order made in terms of s 7(3) of the Divorce Act; and
(i) any other factor which in the opinion of the court should be taken into account.
Maintenance will not be ordered by reason solely of the fact that the parties were married to each other, and that one party is now unable to maintain the standard of living to which he/she has become accustomed to during the marriage.
In the case of Botha v Botha 2009(3) SA 89, the judgement confirms that, taking into account so-called “clean break” and constitutional principles, there is no automatic right to maintenance after a divorce. Entitlement to maintenance must first be shown before a court can determine the quantum and duration thereof.
The Court appears to award little or no maintenance where one or more of the following factors are present: The woman is young or reasonably young; she is well qualified; she has no children or no young children; she has worked throughout her married life; she is working at the time she applies for maintenance; she is in good health; and the marriage was not of long duration. On the other hand, older, unqualified women who have been married for a long time are likely to be more sympathetically treated by our courts. If the wife has not worked for a while, the Court may consider rehabilitative maintenance. Rehabilitative maintenance is awarded to a woman for a limited period while she trains or re-trains for a job or profession.
When considering the existing or prospective means of each party, the Court will look at how much money and how many assets each party has, including any property that can be used to produce income. When considering the standard of living, it is generally recognised that neither spouse is entitled to maintain the same standard as during the marriage unless money is not an object. Where money is no object, it has been argued that there is no reason why a divorced wife and her minor children should not continue to enjoy the same standard of living as during the marriage.