The decision in HA v NA (GP) (unreported case no 44907/2024, 13 February 2025) (Van der Schyff J) contributes significantly to the evolving legal understanding of Muslim marital dissolution within South Africa’s civil law framework. It engages, in particular, with the court’s authority to consider interim relief applications under Rule 43 of the Uniform Rules of Court where the underlying marriage has been terminated via Talaaq in accordance with Islamic law. The case reflects the post-amendment legal environment brought about by the Divorce Amendment Act 1 of 2024, which codifies recognition of Muslim marriages in terms of South African statute.
The matter arose following the breakdown of a Muslim marriage entered into on 25 February 2012, from which three minor children were born. The applicant vacated the matrimonial residence in September 2023. The respondent subsequently pronounced Talaaq on 18 May 2024. The applicant proceeded to institute divorce proceedings and brought an application for interim relief in terms of Rule 43. In response, the respondent raised a preliminary point that the court lacked jurisdiction on the basis that the marriage had already been dissolved in terms of Islamic personal law, thus negating the existence of a spousal relationship for the purposes of Rule 43.
The core legal issue before the court was whether a party to a Muslim marriage remains entitled to bring a Rule 43 application where a Talaaq has been issued prior to the commencement of civil divorce proceedings. Rule 43 permits a spouse to seek temporary orders for maintenance, care, and contact in the course of a pending divorce. The respondent’s contention was that, since the religious divorce predated the litigation, no marriage subsisted and therefore no divorce was pending in the legal sense contemplated by the rule.
The applicant advanced two principal arguments. First, it was submitted that the respondent had not filed a plea contesting the subsistence or validity of the marriage, which meant that the Rule 43 application could not be dismissed on jurisdictional grounds at this stage. Secondly, reliance was placed on the Divorce Amendment Act 1 of 2024, which extends statutory recognition to Muslim marriages and provides a legislative mechanism for their dissolution under the Divorce Act 70 of 1979. In this context, it was argued that a Talaaq issued unilaterally does not preclude a spouse from invoking statutory remedies, including those available under Rule 43.
The respondent maintained that the issuing of Talaaq constituted a final and valid termination of the marriage in terms of Islamic law, thereby rendering the applicant’s reliance on the Divorce Act irrelevant. Furthermore, the respondent interpreted the legislative amendments as facilitating court-ordered dissolutions of Muslim marriages where necessary, but not altering the religious validity of a Talaaq. Accordingly, it was submitted that the applicant could not claim to be a “spouse” as contemplated by Rule 43 after the Talaaq had been issued.
The court engaged with section 6 of the Divorce Amendment Act, which expressly applies to Muslim marriages that are either ongoing or have been dissolved in accordance with Islamic law, provided legal proceedings under the Divorce Act have been instituted and not finalised. This raised the interpretive question of whether a marriage concluded under Islamic rites but ended by Talaaq remains capable of dissolution under the Divorce Act, and whether interim relief under Rule 43 is competent in such circumstances.
In addressing the jurisdictional challenge, Van der Schyff J declined to make a definitive finding on whether a Talaaq conclusively terminates a marriage for the purposes of the Divorce Act. The court considered it premature to rule on the point in limine before the filing of a plea by the respondent. It was held that Rule 43 may be invoked even in situations where the validity or existence of the marriage is contested, referencing the precedent in Zaphiriou v Zaphiriou 1967 (1) SA 342 (W). Further reliance was placed on AM v RM 2010 (2) SA 223 (ECP), where the court found that the pronouncement of a Talaaq did not preclude a Rule 43 application, especially where the validity of both the marriage and Talaaq were disputed in a pending divorce matter.
Ultimately, the High Court dismissed the respondent’s jurisdictional objection. It ruled that, at this interlocutory stage, the applicant was entitled to seek interim relief pending final determination of the divorce. The draft order signed on 12 February 2025 was made an order of court, and costs were reserved for determination in the main proceedings.
This judgment is notable for its careful avoidance of a substantive ruling on the civil status of a religious divorce. Rather, it confirms that the existence of a valid or subsisting marriage is not a precondition for Rule 43 relief where the nature of the marriage is itself in dispute. Importantly, the court’s reasoning underscores the judiciary’s commitment to procedural fairness in transitional family law contexts, particularly where overlapping religious and statutory frameworks apply.
In broader terms, HA v NA reinforces the evolving position of Muslim marriages in South African law. It acknowledges the co-existence of religious and civil legal systems while affirming the authority of courts to adjudicate on matters of spousal rights and parental responsibilities, regardless of unilateral religious actions such as Talaaq. The case adds to a growing body of jurisprudence affirming access to statutory remedies for parties in Muslim marriages and will likely serve as persuasive authority in future Rule 43 disputes arising from similar factual matrices.
