Rights of women married in terms of Muslim personal law

In this matter, our client had been married in terms of Muslim personal law for 28 years. Upon her divorce, she instituted an action for a half share of her husband’s property and rehabilitative maintenance for 12 months. She did not succeed with this action. The Unit stepped in after the Supreme Court of Appeal in Bloemfontein dismissed her appeal against the Cape High Court’s judgment. Although her previous legal representatives did not plead any constitutional issues, the Unit’s view was that the High Court should out of its own initiative have given consideration to the constitutional issues surrounding the recognition of Muslim marriages in law, and the legal consequences of the termination of a Muslim marriage. In our view it should have developed the common law in line with the equality and dignity provisions of the Constitution, to provide our client with a remedy that entitled her to half of her husband’s estate. Because of our views, we assisted our client with an application for leave to appeal to the Constitutional Court. Unfortunately, the Constitutional Court held the view that because the constitutional issues were not raised in the pleadings, the High Court correctly dealt with the matter and there was no prospect of the appeal being successful.