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Tuesday, 22 November 2022 09:44

The Impact of the Constitutional Court Judgement on Muslim Marriages & Divorce

On a national radio broadcast last Friday evening – 11 November 2022 – Attorney Ismail Mohamed participated in an hour-long discussion concerning the topic of the Constitutional Court Judgement and its impact on Muslim marriages and divorces.

Mohamed's address was premised only the legal situation, and not the Shari'ah. He addressed the finer details of divorce involving children, as well as the aspect of finances between husband and wife.

Under the Divorce Act, he stated that the Con Court can rule where the children live, their maintenance, and other pertaining matters. In the event of a dispute in a Marriage in Community of Property, the Court will rebalance the scales, and consider the efforts and assets of one party over the other, he explained.

By default in the past, children are placed in the mother’s custody. In Mohamed’s experience, however, it was found that the mother gets custody of the children, and the father only sees them every second weekend. This puts a strain on mothers, and as an ongoing result, the equal access of custody has become more prevalent.

Mohamed stressed that in the case of a Fasakh – which refers to a dissolution of marriage by a Qadhi or Muslim Judge or a Tribunal who are authorised to conduct such a process – legal intervention will still be required.

The topic of the age of marriage and how it differs from country to country was also touched on. According to the South African Children’s Act, by law, no child under the age of 18 should be given in marriage.

He reminded Muslims that laws of the country are applicable to all citizens and Muslims are not exempted. Going forward, he suggested that Muslims should become more involved in this project by getting involved in discussions with those around them and contributing to the process positively.

“We are not working together,” he said. “We must make sure the law reflects the Shariah.”

Darul Ihsan Media Desk

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