In terms of the Bill an Islamic marriage may be dissolved in one of three ways being: (1) the husband’s irrevocable Talaq; (2) the wife’s Faskh; and (3) the agreed Khul’a.
An Islamic marriage may be dissolved by irrevocable Talaq on any ground permitted by Islamic law.
The husband must register the irrevocable Talaq by no later than seven days after its pronouncement. Failure to register the irrevocable Talaq is an offence and carries a fine not exceeding R50 000.00. Thereafter and within 14 days from registration of the irrevocable Talaq, the spouse must institute legal proceedings for a decree confirming the dissolution.
Upon application by a Muslim wife, a Court must grant a decree of divorce, in the form of a Faskh, on any ground which is recognised as valid under Islamic Law, as well as on any of the following grounds:
- Her husband is missing or his whereabouts are not known, for a substantial period of time;
- Her husband failed for any reason to maintain his wife;
- Her husband has been sentenced to imprisonment for a period of three years or more;
- Her husband is mentally ill or in a state of continued unconsciousness;
- Her husband suffers from a serious disease, including impotency, which renders cohabitation intolerable;
- Her husband treats her with cruelty in any form, which renders cohabitation intolerable;
- Her husband has failed, without valid reason, to perform his marital obligations for a reasonable period;
- Her husband is a spouse in more than one Islamic marriage, and he fails to treat her justly in accordance with the injunctions of the Qur’an;
- The marriage has irretrievably broken down, despite reasonable attempts at reconciliation.
The granting of a Faskh by a Court shall have the effect of an irrevocable Talaq.
Spouses who have effected a Khul’a shall personally and jointly appear before a marriage officer and cause the same to be registered in the presence of two competent witnesses.
The marriage officer shall register the Khul’a as one irrevocable Talaq, whereafter the procedure for divorce by an irrevocable Talaq, as set out above, shall be followed.
CUSTODY AND ACCESS OF MINOR CHILDREN
The minor child’s’ best interest remains paramount at all times.
However, boys up to the age of 9 years old and girls up until puberty will automatically be placed in the custody of their mother. Thereafter, the minor child shall choose which parent he/she wants to reside with.
The non-custodial parent shall have reasonable access, at reasonable intervals, and at least once a week.
The Court shall take the following into consideration when determining maintenance:
- The father is obliged to maintain his son until the age of majority or until he is able to become self sufficient, which ever is earlier.
- The father is obliged to maintain his daughter until she is married.
- Where the mother has custody, the father is obliged to maintain the mother, including the provision of separate residences, for the period she has custody.
- The duty to support his child includes the provision of food, clothing, separate accommodation, medical care and education.
- The husband is obliged to maintain his wife for the mandatory period of Iddah
- If the wife is pregnant or has a newborn, she must be maintained for a breastfeeding period of two years from the date of birth.
When granting a decree of divorce, and determining the ancillary consequences thereof, the Court must be assisted by two Muslim assessors (who will ensure that the decree is further in accordance with Islamic Law).
Ian Mc Laren