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

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.
-------------------------------------------------Family, Estate & notarial legal services
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
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
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
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?
Child custody on death of a parent
Child custody following the death of a parent.
Guardians appointed by deceased parent.
Adoption of a stepchild
Maintenance for children
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
Maintenance for spouse
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
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.
- Antenuptial contracts
- When parties cannot agree on the accrual calculation; the court may appointment a referee to assist with the accrual calculation
- When parties cannot decide how to divvy the assets : The court may nominate someone to collect, realise and divide the estate (called a liquidator, receiver or curator).
- How affairs impact the division of assets on divorce
Movable assets - what to take if you move out.
Protection of assets using a trust
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
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
Divorce & future expenses
Divorce & Future medical expenses
Marriage (COP vs ANC), cohabition and Universal partnerships
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
Rights for those in Universal partnerships
- Universal partnership: Asset sharing
- The distribution of assets from the dissolution of universal partnerships
Treatise on the Contract of Partnership: By Pothier ; with the Civil Code and Code of Commerce ... (1854)
Null declaration of customary union
Perjury & forgery
Divorce: Forging spouse's signature
Divorce courts
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?
Divorce documents
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
Spangenberg & Another vs De Waal; Rule 43 order is set aside