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Johannesburg - A woman married and divorced under Islamic law can stay in her marital home after her ex-husband's eviction application was dismissed by the Goodwood Magistrate's Court, the Women's Legal Centre (WLC) said on Friday.
The home that Adnaan and Gadija Isaacs shared during their 13-year Islamic marriage was only registered in Adnaan's name, the WLC said in a statement.
No marital property existed between the two due to Islamic marriages not being legally recognised, with the home registered in Adnaan's name.
"In the application heard on 24 July 2014, the applicant [Adnaan] sought to evict his ex-wife as an unlawful occupier in terms of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998," the WLC said.
"He sought to evict her from the home, whereby she would be separated from their two children born of the marriage, so that he could move in with his new wife."
The WLC felt obligated to assist Gadija as its main purpose was to advance women's rights and interests through strategic litigation and advocacy.
It challenged the right of ownership of the marital home, which matrimonial property regime applied, and the fact the marital home was bought with proceeds from another home granted to them by the City of Cape Town where Gadija was the joint applicant.
The WLC raised the interests of the two minor children where Gadija had been the primary caregiver during the marriage and after the divorce, and the constitutionality of Islamic marriages not being legally recognised.
This was within the context that legislation was pending regulating Islamic marriages.
The court acknowledged there were very important matters yet to be decided beyond its remit, such as the non-recognition of Islamic marriages, the consequences of divorce according to Islamic rites, and the custody of minor children.
It considered that Gadija was a mother heading her household by herself, the interests of the children, the discrimination she faced in obtaining joint ownership of the couple's first marital home, and the consequences of divorce according to Islamic rites being unfair.
As such, it would not be just and equitable for Gadija to be evicted from the property, and she was allowed to continue living on the property with her children.
The ruling was made on Thursday.
