Can I get money from my husband who left me after four years married under Islamic law?

The long answer

As the Nikahforever.com blog on nafaqah (financial responsibility) observes: “In Islam, it states clearly, that the man (husband) is responsible for providing for his wife and children financially.”

It is accepted that according to the Quran, a husband can leave his wife for up to four months in a trial separation. Once that four-month period has elapsed, the husband and wife are to reunite to continue their marriage or obtain a divorce.

In the case of marital breakdown, https://www.al-islam.org says that “…a woman must approach the team of arbitrators and ask them to advise and council [sic] her husband and induce him to observe justice and fairness, and to perform his duties. If they are successful, she continues her life with him and if he does not see the light and amend his ways, she must advance her complaint to a canonical Islamic judge or family court.

The judge summons the offending husband and demands that he refrain from oppression and abuse and that he perform his duties. If he does not accept, he is obligated to divorce her. If he refuses to do so, the judge himself divorces them and forcefully takes the wife’s rights from her husband.”

It is accepted that a man's inability or refusal to support his wife is grounds for divorce under Islamic law.

But there are conflicting schools of thought in Islam about what financial support a wife is entitled to after the divorce. Some Muslim jurists believe that Mut’at-et-al-talaq (post-divorce financial support) is recommended rather than obligatory. Some feel that women are only entitled to three months of spousal support during the religiously prescribed waiting period before the divorce. Dr Muḥammad Ādam El Sheikh, an arbitration, mediation and conflict resolution specialist at the American Islamic University, says that it is a fairly general view that a woman who is divorced through desertion by her husband is entitled to mut’at – some kind of support.

In the case of Pakistani Islamic marriage, he says that the default position is that the wife has no rights to the husband’s property, but that the American courts don’t have to go along with that if it conflicts with their interpretation of what a wife is owed “when Pakistani law is silent”. He quotes a case where the American courts found in favour of the wife in Maryland, after the husband had gone off to the Pakistani Embassy and performed the divorcing words three times (the talaq divorce), and afterwards said he owed nothing to his wife. 

In South Africa, in June 2022, the Constitutional Court confirmed a Supreme Court of Appeal (SCA) ruling, which legally recognises Muslim marriages, and declares certain sections of the Marriage Act and Divorce Act unconstitutional.

It said that differentiating between those who marry according to the Marriage Act and those who marry according to Muslim rites was unfair discrimination, especially against Muslim women, and there was no valid reason not to recognise Muslim marriages. 

The Women's Legal Centre Trust had first taken up the case to get the state to recognise Muslim marriages in 2009, and it was finally resolved by the Constitutional Court in 2022.

News24 quotes the Trust's legal representative, Nazreen Bawa, appealing to the Constitutional Court:

“We are asking the court not to close the door on women. Give them the option to exercise their rights. Without this relief, women, who have historically been deprived, will continue to be deprived.”

The Constitutional Court ruled in favour of the Trust and gave the state 24 months to either prepare new legislation in place of the Marriage Act and the Divorce Act or prepare new legislation to recognise Muslim marriages.

In 24 months, the Divorce Act will apply to Muslim marriages that were concluded after 15 December 2014, and the marriage will be seen as out of community of property, except if there was another agreement. 

But importantly, even though the marriage will be seen as out of community of property, Section 7(3) of the Divorce Act will also apply: this means that if there is no agreement between the husband and wife, a spouse can approach the court to make an order dividing the assets of the other spouse in a way that the court thought fair. This kind of divorce order would only be made by a court if the marriage had been ended under Sharia law, and the marriage was still existing after the 24 months had gone by and the state had failed to make new legislation as it was ordered to do.

So, at this point, you should seek legal advice. If you can’t afford a lawyer, you can approach Legal Aid, which is a means-tested organisation.

These are their contact details:

• Legal Aid Advice Line (Toll-free): 0800 110 110

• Please-Call-Me number: 079 835 7179

You could also approach the organisation that brought the case to court for advice: Women’s Legal Centre Trust

• 2nd Floor, 5 St Georges
  St Georges Mall
  Cape Town
• Tel: 021 424 5660

Wishing you the best,
Athalie