A woman has successfully convinced the court to force her ex-hubby to reimburse her R96,780 for the financial support she provided during their brief marriage.
The amount covers various household expenses she incurred while they were together as her husband was under debt review at the time.
This follows a ruling by the Western Cape High Court, which overturned an earlier decision by the magistrate’s court in Wynberg that had dismissed her claim for nafaqah under the Muslim marriages. Nafaqah is a mandatory financial maintenance and support a husband must provide for his wife and children in Islamic law.
In her judgment, judge Mas-udah Pangarker found that the magistrate had made several material errors in both law and fact, warranting the high court’s intervention.
“First, the magistrate concluded in her judgment that the Islamic principle of nafaqah finds no place in South African law and repeated this view in her written reasons some months later. As a general proposition, and prior to the recognition of Muslim marriages, such finding would in all probability have been correct,” Pangarker said.
The judge said during the marriage, it was common cause that the woman bore the lion’s share of the household expenses.
In his defence, the ex-husband said there was no agreement to repay the woman for her efforts and that she knew he was broke
According to the judgment, the couple’s brief marriage from August 2020 to August 2021 was solemnised according to Islamic rites.
The woman is an attorney who ran her own legal practice, while the ex-husband was employed in the NGO sector but was under debt review and had a duty to support his mother. “His financial position was therefore constrained. The marriage was, by all accounts, short and turbulent.”
The woman conceived shortly after their weding and their son was born prematurely in 2021, which according to the judgment resulted in “significant and unexpected medical expenses”.
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The couple’s relationship deteriorated rapidly thereafter, and the marriage was dissolved by faskh.
The woman’s father had testified that he would not have granted his blessing had he not been satisfied that the man understood and intended to honour this duty.
After their divorce the woman sought to recover R154,118.61 from her ex.
During the appeal, the high court looked into whether the woman’s payment were voluntary gifts or whether they gave rise to a legally enforceable obligation to be reimbursed by the ex-husband once he regained financial strength.
The expenses the woman took care of included:
- rent;
- groceries;
- medical costs;
- a trip to Durban;
- a R4,000 damage to her car caused by her spouse; and
- R2,600 advanced for a vape juice business venture proposed by the ex-husband.
In his defence, the ex-husband said there was no agreement to repay the woman for her efforts and that she knew he was broke.
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The judge said while the matter before was a civil trial and not a family law dispute, the magistrate’s adoption of a strictly civil law outlook rejected the woman’s case based on nafaqah as it had no place in South African law, impacted on her findings in the judgment.
She said the magistrate had also paid little regard to evidence presented explaining the husband’s Islamic legal obligation of paying for essential needs of his spouse.
“Second, the magistrate erred in treating the appellant’s claim as standing or falling entirely on the basis of lack of proof of a formal, express oral agreement.”
The judge said the man had approached the woman’s father, affirming his duty of nafaqah.
He also admitted that should his then wife not have paid rent, they would not have been married. “This demonstrated a clear understanding that her payment was a necessary condition for the marriage to proceed, not a voluntary gift to which he was entitled,” said the judge.
The court, however, found that the woman’s claim of R154,118.61 was over-inclusive in that not every item she paid for fell within the scope of the tacit agreement or the nafaqah obligation.
Sowetan
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