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Muslim marriages and divorces

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.

Previously No legislation for Muslim marriages

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, 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.

Muslim marriages and divorces

Previously No legislation for Muslim marriages

Out of community of property & excluding accrual

Khan v Khan 2005

Much progress since 1983

Family, Estate & notarial legal services

Other divorce-related issues

At the beginning

Psychological issues

Child-related divorce matters

Annexure A

Custody of children upon divorce

Child custody post divorce

Child custody on death of a parent

Adoption of a stepchild

Maintenance for children

Maintenance for spouse

Abduction & kidnapping of children

International divorces, children & overseas issues

Other child-divorce matters

Affairs

Assets/debt and divorce

Divorce & pension fund assets

Property and divorce

Life insurance, death & divorce

Divorce & future expenses

Marriage (COP vs ANC), cohabition and Universal partnerships

Perjury & forgery

Divorce courts

Annulment instead of divorce

Divorce documents

Divorce orders

Ask legal questions about child custody here. We would love to assist.