A Cape Town Muslim woman has successfully challenged the right to stay in her marital home after her ex-husband tried to evict her. On Thursday, the Goodwood Magistrate’s Court dismissed the application of Adnaan Isaacs to evict his ex-wife, Gadija Isaacs from the marital home, which they resided in during their Muslim marriage. He was married to her for 13 years in terms of Muslim rites.

The marital home was registered only in the applicant’s name because their marriage was not legally recognised, whereby no marital property regime applied to their Muslim divorce which would grant her rights in terms of the proprietary consequences of the marriage.

In the application heard on 24 July 2014, the applicant 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. 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.

Gadija Isaacs was turned away by many in her quest for help because she was advised that she had no right to oppose the application because the applicant was the owner of the property. She was told she had no rights arising out of her Muslim marriage because it was not a legal marriage.

The Women’s Legal Centre (WLC) took on her case and opposed the application on her behalf challenging, the right of ownership of the marital home, which the matrimonial property regime applied. Amongst the arguments were the fact that 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 interests of two minor children where she has been the primary caregiver during the marriage and after the divorce, the constitutionality of the non-recognition of the Muslim marriage, and the fact that there is pending legislation regulating Muslim marriages.

The court acknowledged that there are very important issues yet to be decided upon in forums other than this court such as the non-recognition of Muslim marriages, the consequences of divorce according to Muslim rites and the custody of the minor children.

“The court took due consideration of the fact that Gadija is a mother heading her household singlehandedly, having regard to the interests of the children, that she was discriminated against in obtaining joint ownership of their first marital home and that the consequences of divorce according to Muslim rights is unfair, in terms of which the court found that it would not be just and equitable for her to be evicted from the property,” said attorney Hoodah Abrahams-Fayker from the WLC.

The application for eviction was dismissed and Gadija Isaacs is allowed to continue to reside on the premises with her children.

With two percent of South Africans’ being Muslim, Abrahams-Fayker said the judgment acknowledges the vulnerability and marginalization that Muslims face by virtue of the non-recognition of their marriages.

“The WLC takes note of the subordination and discrimination suffered by South African women whereby it strives in one of its focus areas for the recognition of relationships that are currently not legally recognised in South African law such as domestic partnerships and religious marriages with a view to obtaining better protection for women and equal distribution of marital assets upon the dissolution of the marriage or relationship.” VOC