The Western Cape High Court has made a landmark ruling for Muslim women
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In a precedent-setting ruling for South African family law, the Western Cape High Court has found that the Islamic legal obligation of nafaqah can underpin a civil claim for financial reimbursement between divorced Muslim spouses.
Nafaqah refers to a husband’s religious duty to maintain his wife, or spousal maintenance.
In a judgment delivered on Tuesday, Judge Mas-udah Pangarker and Acting Judge Igshaan Higgins ordered Cape Town attorney Yasmeen Moollajie to be paid R96,780 plus costs by her former husband, Samiulla Parker.
The couple married according to Islamic rites in August 2020, but the relationship was brief and marked by conflict. It ended a year later through an Islamic annulment (faskh). During the marriage, Moollajie carried the "lion's share" of household expenses as Parker, an NGO worker, was under debt review and financially constrained.
Moollajie sought to recover more than R154,000 spent on rent, groceries, medical costs for their prematurely born son, an insurance excess after Parker crashed her car, and startup funds for Parker’s vape juice business.
Her initial claim in the Wynberg Magistrates’ Court was dismissed. The lower court adopted a "strictly civil law outlook" and held that the Islamic principle of nafaqah had "no place in South African law", treating her contributions as voluntary gifts rather than obligations.
On appeal, Pangarker and Higgins overturned that decision, finding that the magistrate had erred by disregarding the couple’s religious context.
The judges pointed to evolving legal recognition of Muslim marriages, including the Constitutional Court’s ruling in Women’s Legal Centre Trust v President of the Republic of South Africa and the Divorce Amendment Act 1 of 2024.
The High Court held that while nafaqah is not directly enforceable in civil courts as religious doctrine, it provides a crucial "normative backdrop" for assessing the parties’ financial conduct.
Relying on uncontested expert testimony from Mufti Mogamat Maker, the court accepted that nafaqah is a mandatory obligation in Islamic law.
It further found that when a husband cannot fulfil this duty and a wife covers essential expenses, Islamic law presumes she is extending a loan (Qard), not making a gift.
The court noted that this presumption applies unless the wife explicitly waives her right to repayment, which Moollajie did not do. Parker failed to prove such a waiver, leading the court to infer a tacit agreement between the parties.
The judges also highlighted Parker’s admission under cross-examination that the marriage would not have proceeded if Moollajie had not paid the rent, concluding that her contributions were necessary conditions rather than "voluntary benevolence".
The court found that legislative developments required a contextual approach. It ruled that the magistrate committed a material error by maintaining a "strictly civil law outlook" that dismissed nafaqah outright.
Instead, the High Court said the Divorce Amendment Act allowed it to consider expert evidence on Islamic law and use nafaqah as part of the "factual matrix" to determine the parties’ legal intentions, including the existence of a tacit contract.
The ruling is the first reported High Court decision to explicitly use the Islamic obligation of nafaqah to support a civil claim for monetary reimbursement between divorced Muslim spouses.
Legal observers say the judgment could have far-reaching implications, effectively closing a gap that allowed claims to be dismissed on the basis that a wife’s financial contributions were merely "voluntary gifts".
The court’s approach signals that claims arising from Islamic marriages or grounded in cultural principles such as nafaqah can no longer be dismissed without proper consideration of their context, marking a significant step in the development of a more inclusive South African jurisprudence.