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Muslim Divorces under 2024 Divorce Amendment Bill

We have come a long way since 1983; when the case of Ismail v Ismail held that marriages solemnised 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. On the 9th of May 2024 the Divorce Amendment Bill was signed into law in South Africa. Should a Muslim marriage end in divorce, the Divorce Amendment Bill sets out the principles, inter alia, for:
  • the division of assets
  • the protection of minor children
Muslim husband with pregnant wife, children, mosque and Table Mountain in the background

Definition of a Muslim Marriage

"Muslim marriage means a marriage entered into or concluded in accordance with the tenets of Islam." (per the Divorce Amendment Bill).

Court may end Muslim Marriages

"A marriage, including a Muslim marriage, may be dissolved by a court by a decree of divorce" (per the Divorce Amendment Bill. This Act applies to all subsisting Muslim marriages, including a Muslim marriage— (a) which was terminated or dissolved in accordance with the tenets of Islam and where legal proceedings for the dissolution of the said Muslim marriage in terms of the Divorce Act, 1979 (Act No. 70 of 1979) have been instituted but not yet finalised; and (b) which subsisted as at 15 December 2014.

Protections for children

"A court granting a decree of divorce may, in regard to the maintenance of a dependent child of the marriage, including a dependent child of a Muslim marriage, or the custody or guardianship of, or access to, a minor child of the marriage, including a minor child of a Muslim marriage, make any order which it may deem fit, and may in particular, if in its opinion it would be in the interests of such minor child to do so, grant to either parent the sole guardianship (which shall include the power to consent to the marriage of the child) or the sole custody of the minor, and the court may order that, on the predecease of the parent to whom the sole guardianship of the minor is granted, a person other than the surviving parent shall be the guardian of the minor, either jointly with or to the exclusion of the surviving parent."

Division of Assets for Muslim divorces

If the divorcing parties to a Muslim marriage don't agree on a division of assets, the court may set out how the assets are to be divided.

The court will satisfy itself that the division of assets "is equitable and just by reason of the fact that the party in whose favour the order is granted, contributed directly or indirectly to the maintenance or increase of the estate of the other party during the subsistence of the marriage, either by the rendering of services, or the saving of expenses which would otherwise have been incurred, or An order under subsection (3) or (3A) shall not be granted unless the court is satisfied that it is equitable and just by reason of the fact that the party in whose favour the order is granted, contributed directly or indirectly to the maintenance or increase of the estate of the other party during the subsistence of the marriage, either by the rendering of services, or the saving of expenses which would otherwise have been incurred, or in any other manner."

It must also take into account "any contract or agreement between the parties in a Muslim marriage, where the husband is a spouse in more than one Muslim marriage".

What it was like before the Amendment Bill

What was lacking in South Africa's legal system was legislation 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.

Out of community of property & excluding accrual

Muslim marriages were 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 applied was 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. The lack of Muslim law, however, meant no recognition was given to where one party spendt time raising children or maintaining the home.

Khan v Khan 2005

In Muslim law there was also no potential claim for a universal partnership. South Africa's courts went a long way in terms of equalising the rights of Muslim spouses, using the Constitution, to afford them the same rights as parties to a civil or customary union. A 2005 case which is 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.

Much progress since 1983

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.

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Other divorce-related issues

At the beginning

Should I advise my spouse of the impending divorce action?

Should you move out of the matrimonial house prior to divorce?

Remove your spouse as a beneficiary on your Life assurance.

Divorce rule 43 for maintenance prior to divorce & divorce costs

Psychological issues

The stress of divorce

Marriage counselling to avoid divorce

Psychological impact of divorce on children

Child-related divorce matters

Mediation to resolve child custody and maintenance issues

Can a "band-aid baby" save a marriage?

Annexure A

If there are minor children involved, the divorce summons must have an Annexure A attached to it.

Custody of children upon divorce

Child custody in South Africa

Jurisdiction in child custody matter (e.g. if child moved to another province)

Joint decisions with respect to minor children

Using Rule 43 to apply for interim custody entitlement

Custody when there's been drug use.

Child custody for the father
Custody granted to unmarried father
When a child won't see his/her father or mother

Custody & drugs

An unborn child when divorcing

Grandparents & divorce
When Grandparents want custody ahead of parents

Challenging the family advocate report

Child custody post divorce

Application to terminate your ex's parental rights

Splitting up siblings post divorce

Which parent decides the school to attend?

Relocation of minor children

Child custody on death of a parent

Child custody following the death of a parent.

Guardians appointed by deceased parent.

Adoption of a stepchild

Adoption of a stepchild

Maintenance for children

Child maintenance

Child maintenance to what age?

Maintenance & proof of paternity

Maintenance & custody of adopted children

Maintenance for the unborn child

Divorce & maintenance considerations for a handicapped child

Token or minimal maintenance when parent doesn't work

Impact of inheritance on child maintenance obligations

Maintenance for children over 18
Grandparents' maintenance & care obligations
Children suing for maintenance

Application for maintenance reduction

Arrest after failing to pay maintenance

Ex refuses to pay school fees

Maintenance for spouse

Spousal maintenance

Maintenance in a polygamous marriage

Maintenance when your spouse remarries

Abduction & kidnapping of children

Abduction of a minor - Latest case law

The kidnapping of minor children by a parent

The international abduction of children from South Africa.

International divorces, children & overseas issues

Divorce when the children & spouse are overseas

Child contact rights for an overseas parent

When your child and ex move overseas - keeping contact

Other child-divorce matters

Handicapped children & the divorce rate

Children and marital problems

National register of those unsuited to working with children

Affairs

Affairs and their impact on divorce settlements.

Assets/debt and divorce

The duty to disclose your financials when divorcing.

Insufficent disclosure from a spouse on their assets/liabilities; the section 7 notice remedy (in terms of the Matrimonial Property Act)

Division of the joint estate in the event of a divorce.

Movable assets - what to take if you move out.

Protection of assets using a trust

Debt Review and Divorce

Working together and divorce

Conveyancing books: (1) The Practitioners Guide to Conveyancing and Notarial Practice (2) Consolidated Chief Registrar of Deeds' Circulars and Conference Resolutions, (3) The Law and Practising of Conveyancing in South Africa

Divorce & pension fund assets

Divorce and pension fund payouts

Get your info directly from spouse's pension fund, not indirectly from your spouse.

Undisclosed Pension Interest at divorce results in amendment to divorce order

Pension interest in the accrual calculation, and the related tax liability

State pension fund is unconstitutional

Navy pension payout post-divorce

Unmarried couples & pensions

Property and divorce

Be careful with how you word the clauses about selling the property upon divorce

Should you move out of the matrimonial house prior to divorce?

Property in your spouse's name

When parents have rights to stay at the property you want to sell on divorce.

Life insurance, death & divorce

Life assurance actions you need to take when divorcing

Death in the middle of divorce

Inheritance & divorce

Divorce & future expenses

Divorce & Future medical expenses

Marriage (COP vs ANC), cohabition and Universal partnerships

Antenuptial contracts

The postnuptial contract

Marriage in community of property
Short definition of a marriage in community of property
Forfeiture of benefits of marriage in community of property - Wijker v Wijker 1993
Kooverjee v Kooverjee

The co-habitation agreement

Rights for those in Universal partnerships

Treatise on the Contract of Partnership: By Pothier ; with the Civil Code and Code of Commerce ... (1854)

Null declaration of customary union

Muslim marriages & divorces

Perjury & forgery

Perjury in the court papers

Divorce: Forging spouse's signature

Divorce courts

Divorce & the day in court

Divorce cases in the Cape High Court

Annulment instead of divorce

What is annulment of a marriage?

What are the grounds for annulment of a marriage?

Lady justice holding a sword and the scale of justice

Divorce documents

Seperation agreement

Sheriff letter for divorce summons (combined summons)

Sheriff letter for divorce summons

The final order of divorce

Divorce & the particulars of claim

 

Divorce orders

Vary or rescind a divorce order

Change divorce order without court application

Non-compliance with a divorce order

Contempt of Consent Paper

Spangenberg & Another vs De Waal; Rule 43 order is set aside

Ask legal questions about Muslim divorces here. We would love to assist.