Parental Rights of Divorced Muslim parents who were only married in terms of Muslim Rights (Updated)

When Muslim parents divorce, either via a Talak or Faskh, there remains the unresolved issue of their respective parental rights and responsibilities to their children. In other words, with whom should the child reside, and what type of visitation rights should the other parent have? Then there is the issue of child maintenance, parental guardianship consent and so on. Parents married in terms of South African civil law have the advantage of having the civil divorce court deal with the issue of access (contact) and custody (care). The civil divorce court is obliged to do this before pronouncing a final decree of divorce. This is however not the case of a Talak or Faskh. As you would see later, we suggest that Muslim divorced parents enter into a parenting plan.

Divorced Muslim Fathers’ parental rights

Muslim fathers, who were married in terms of Muslim Rites, have just as many rights as the mothers, to their children. This is so notwithstanding them having been married in terms of Islamic Rights only (and not civilly). From a South African Legal perspective, they are both co-holders of parental responsibilities and rights with regard to their minor children. What often happens is that one parent refuses the other reasonable contact to the child after the divorce. Or he or she may take the stance that he or she is the sole decider as to where and when the other parent may have contact with the children. This is not lawful and clearly not in the children’s best interests. The end result is, for example, the father takes the mother to the High Court, or the Children’s Court and the Judge or Magistrate confirms the father’s rights which he had all along. This can turn out to be very expensive, and draining on the children and parents alike. Attorneys and Advocates may be used and simple issues get battled out in the public domain. A more responsible approach needs to be followed which is suggested next.

What should Muslim parents do after they separated?

Should parents who were married in terms of Muslim Rites and have a child or children together, separate, it is suggested that they, as soon as possible, try to agree on a parenting plan and have it registered with the Office of the Family Advocate or have it made an Order of Court. This option became available since 1 April 2010 with the coming into effect of section 33 of the Children’s Act 38 of 2005. If a parent refuses to try to agree on a parenting plan, the Court needs to be approached if issues cannot be resolved. This situation is best to be avoided. The parenting plan would be a document which the parents themselves decided upon and not dictated to them by the Court. Of course, the parenting plan has to be in the child or children’s best interests. By parents following the parenting plan route, they would keep their personal issues out of the realm of the Court and concentrate on being the best parents they can be for their children. This is so, notwithstanding their relationship with each other has severed.

Drafting a Parenting Plan

A well-drafted parenting plan would provide for issues, starting from the date of its drafting, until the children are adults. Suppose the children are toddlers when the parents separated; the parenting plan would need to deal with issues that could arise when it comes to schooling, extramural activities and issues of consent for a passport and so on. As the child gets older, he or she may want to spend more time with the other parent. This needs to be dealt with in the parenting plan, if applicable. The parenting plan can also make reference to a parenting facilitator or coordinator to assist the parents in resolving disputes in the future.

Who can assist you with a parenting plan?

Social workers, psychologists and family mediators are well suited to assist parents with parenting plans. Other suitably qualified persons would be attorneys and advocates. If the person has the necessary training and experience to assist you, we advise that you make use of him or her to assist you in obtaining a parenting plan. We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws    
Posted on by Telelaw

Parental Rights of Divorced Muslim parents who were only married in terms of Muslim Rights (Updated)

When Muslim parents divorce, either via a Talak or Faskh, there remains the unresolved issue of their respective parental rights and responsibilities to their children. In other words, with whom should the child reside, and what type of visitation rights should the other parent have? Then there is the issue of child maintenance, parental guardianship consent and so on.

Parents married in terms of South African civil law have the advantage of having the civil divorce court deal with the issue of access (contact) and custody (care). The civil divorce court is obliged to do this before pronouncing a final decree of divorce. This is however not the case of a Talak or Faskh. As you would see later, we suggest that Muslim divorced parents enter into a parenting plan.

Divorced Muslim Fathers’ parental rights

Muslim fathers, who were married in terms of Muslim Rites, have just as many rights as the mothers, to their children. This is so notwithstanding them having been married in terms of Islamic Rights only (and not civilly). From a South African Legal perspective, they are both co-holders of parental responsibilities and rights with regard to their minor children.

What often happens is that one parent refuses the other reasonable contact to the child after the divorce. Or he or she may take the stance that he or she is the sole decider as to where and when the other parent may have contact with the children. This is not lawful and clearly not in the children’s best interests. The end result is, for example, the father takes the mother to the High Court, or the Children’s Court and the Judge or Magistrate confirms the father’s rights which he had all along. This can turn out to be very expensive, and draining on the children and parents alike. Attorneys and Advocates may be used and simple issues get battled out in the public domain. A more responsible approach needs to be followed which is suggested next.

What should Muslim parents do after they separated?

Should parents who were married in terms of Muslim Rites and have a child or children together, separate, it is suggested that they, as soon as possible, try to agree on a parenting plan and have it registered with the Office of the Family Advocate or have it made an Order of Court. This option became available since 1 April 2010 with the coming into effect of section 33 of the Children’s Act 38 of 2005. If a parent refuses to try to agree on a parenting plan, the Court needs to be approached if issues cannot be resolved. This situation is best to be avoided.

The parenting plan would be a document which the parents themselves decided upon and not dictated to them by the Court. Of course, the parenting plan has to be in the child or children’s best interests. By parents following the parenting plan route, they would keep their personal issues out of the realm of the Court and concentrate on being the best parents they can be for their children. This is so, notwithstanding their relationship with each other has severed.

Drafting a Parenting Plan

A well-drafted parenting plan would provide for issues, starting from the date of its drafting, until the children are adults. Suppose the children are toddlers when the parents separated; the parenting plan would need to deal with issues that could arise when it comes to schooling, extramural activities and issues of consent for a passport and so on. As the child gets older, he or she may want to spend more time with the other parent. This needs to be dealt with in the parenting plan, if applicable. The parenting plan can also make reference to a parenting facilitator or coordinator to assist the parents in resolving disputes in the future.

Who can assist you with a parenting plan?

Social workers, psychologists and family mediators are well suited to assist parents with parenting plans. Other suitably qualified persons would be attorneys and advocates. If the person has the necessary training and experience to assist you, we advise that you make use of him or her to assist you in obtaining a parenting plan.

We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well.

Should you require business advice or services, feel free to click on these links:

Business SA | Private Legal | Envirolaws

 

 

Related Post

Relocation with my minor child to Turkey, Antalya (Consent and Refusal) – Advocate Muhammad Abduroaf

The world is becoming a much smaller place, and technology plays a huge role. People are moving across the world for employment, love and happiness, something that was not the norm a few decades ago. There is no reason why you should remain in South Africa if you can find a better life for yourself and your family overseas. Moving overseas may provide you with the quality of life you want or the possibility of experiencing things you always wanted. The same applies to your child or children relocating with you.

Relocation of your minor child to Antalya, Turkey

If you are single and do not have any minor children, then moving around the world would not be too complicated. All you need to do is ensure that you have the necessary travel documentation and travel ticket (and spending money), and off you go. However, if you want to travel with your minor children (for example, ages one or two) or relocate to another country, things may not be that simple. Firstly, if there is another parent, and he or she has parental responsibilities and rights, then his or her consent is required. For example, let us say you live in Uitenhage or Welkom, South Africa, and you want to relocate to Antalya, Turkey, you would require the other parent’s consent to leave South Africa with your minor child. This can cause challenges, especially if the staying parent (in South Africa) does not agree to the relocation.

What about Passport Consent to travel or relocate to Antalya, Turkey?

The same applies when it comes to your minor child applying for a South African passport to relocate to Turkey, or any country. Both parents who have parental responsibilities and rights of guardianship will have to consent to the minor child’s passport application as well. In this regard, both parents have to be at the Department of Home Affairs (or the relevant bank that also assists with passport application) when making the Application with the minor child. This can be challenging if you have a disinterested parent who does not want to cooperate with the passport application. As you will see later, legal action would need to be taken.

What are the steps to follow when I want to relocate to Antalya, Turkey with my minor child? There isanother parent.

To simplify the process for relocation, the first step would be to receive the other parent’s consent in principle for the relocation and that he or she will co-operate in this regard. Once that has been resolved, the parent relocating would need to make the appointment for the minor child’s passport application as well as the application for the relevant VISA. Each country has different requirements; however, seeing that it is a relocation, you need to apply for the correct VISA. For that, you need the Passport. Once the visa and travel arrangements have been finalised, the parent remaining behind will sign a parental consent letter for the international travel. That letter can be found on the Department of Home Affairs website. Basically, the parent remaining behind would state that he or she gives consent for the minor child to leave the Republic of South Africa and travel and/or relocate to Antalya, Turkey.

What can I do if the other parent does not want to consent to the minor child’s relocation to Antalya, Turkey?

If the parent remaining in South Africa does not want to consent to the minor child’s passport application and/or his or her relocation to Antalya, Turkey, then you would need to approach the Court. The Court, as upper guardian of the minor child, may order that the parent’s consent for the passport application and relocation be dispensed with. What this entails is submitting Court documents explaining why you want to relocate to Antalya, Turkey. The other parent would also have an opportunity to give reasons why he or she objects. At the end of the process, the Court would determine what is in the minor child’s best interests. If it is in the minor child’s best interests to relocate to Antalya, Turkey, the Court would make it possible despite the issue of consent or refusal.

What is the first step I should take if the other parent does not want to consent to the minor child’s passport application and/or relocation to Antalya, Turkey?

If the other parent does not want to consent to the passport application and/or the relocation of the minor child to Antalya, Turkey – in that case, we suggest you approach an attorney or advocate (trust account) to assist you with the legal process. He or she would then contact the other parent explaining the reasons for the relocation and request the necessary consent. If the parent remaining in South Africa does still not agree to the passport application and/or to the relocation to Antalya, Turkey, then the attorney or advocate will proceed to take the matter to court. The legal route can be expensive. However, it is necessary to make the relocation of the minor child possible. You may also attend to the legal process yourself.

Getting legal assistance or help with your relocation application to Antalya, Turkey

If you require legal assistance or representation with relocating to Antalya, Turkey due to the other parent not cooperating or providing consent, then feel free to contact us for assistance. The Firm Advocate, Muhammad Abduroaf, deals with these types of matters.

Posted on by Telelaw

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