How to find a divorce lawyer in Cape Town, South Africa

Muslim marriages and divorces

 

Legal status and recognition under South African law of a marriage consummated under Muslim customs. Prominent cases and statutes which give guidance on divorce procedures.

Mosque - Muslim place of worship

Us divorce attorneys are often consulted by Muslim clients who ask if we understand how Muslim marriages work and whether we can assist them in their divorce matter. Whilst I personally am not of the Muslim faith, over the years I have done research into Muslim marriages and divorces and am more than equipped to handle a Muslim divorce case.

What is lacking in our legal system is an Act dealing specifically with Muslim marriages. We have an Act dealing with the recognition of customary marriages (The Recognition of Customary Marriages Act 120 of 1998) but nothing dealing with Muslim marriages or their recognition and in a legal dispute the courts have had to follow case law in coming to a decision.

Muslim marriages are seen to be marriages out of community, excluding the accrual system. What this basically means, is that at the time of dissolution of the marriage, the principle which applies is that of “what is yours is yours and what is mine is mine”. Whatever was purchased by a party during or before the marriage remains the sole and exclusive property of that party at the time of dissolution of the marriage. This no doubt is totally different to a marriage in community of property, where assets form part of a joint estate.

Some may argue that this may be seen to be a form of unfair discrimination, usually against the woman, who often has to sacrifice a career by spending time at home raising children, while the man is at work and building up his estate by accumulating assets. Our civil law recognizes both a direct financial contribution as well as an indirect contribution, where for example a lady stays at home raising the children while the man works. Muslim law however does not give recognition to where one party spends time raising children or maintaining the home.

 

In Muslim law there is also no potential claim for a universal partnership. The courts have however gone a long way in terms of equalizing the rights of Muslim spouses, using the Constitution, to afford them the same rights as parties to a civil or customary union. One of the recent cases as an example of this is that of Khan v Khan 2005 (2) SA 272 (T) where it was decided that partners in Muslim marriages owe each other a duty of support and therefore have the right to claim maintenance from one another in terms of the Maintenance Act 99 of 1998.

I personally am pleased that our law has come so far in equalizing the rights of Muslim spouses. This is a huge development from the position in the early eighties, for example, where the case of Ismail v Ismail 1983 (1) SA 1006 (A) held that marriages solemnized under Islamic law do not enjoy the same status of a marriage in civil law because these unions are potentially polygamous and therefore against public policy.


Related Articles

Divorce Rule 43 for Islamic law

Dissolution of customary marriages

Community of property & contracts

Maintenance in polygamous marriages

 


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