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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

Frequently Asked Questions on Divorce – Cape Town South Africa

How long does it take to get an uncontested divorce in South Africa?

If the parties are in agreement to the divorce, and sign a consent paper or settlement agreement, it can take about 4 weeks. However, if they cannot come to an agreement on all aspects, for example, child maintenance and custody, then it can take about a year. This is if all goes well an no party tries to delay the process.

How long does it take to get an amicable divorce?

It all depend on the parties. If it is indeed amicable, then approximately four weeks. It is best to have a lawyer assist in the process. However, you can do it DIY.

How much does it cost to get a divorce?

The Courts do not charge for a divorce. However, if you decide to do a divorce on your own, then it would be free. The only costs would be that which you pay the Sheriff to serve the summons on the other party.

How long will it take for a divorce to be final?

It depends on when the hearing date of the divorce is. It can take a few weeks, or a year or so.

How long does it take to get a divorce decree in the mail?

Divorce decrees are not posted to you by the Court. You would have to collect it from the Court.

How much does it cost to get an uncontested divorce in South Africa?

If you make use of an attorney, the costs could be around R 5000 – 00 to R 20 000 – 00 depending on how much work could be involved. However, there are places that charge a lessor fee. Look around.

Why does it take so long to get a divorce? Is there a waiting period for a divorce in Cape Town?

You can get divorced in the Family Court or the High Court. Depending on whether you and your spouse agrees on the terms of the divorce, it can take quick. However, if it must proceed to Trial, it can take about a few months to get a date.

How long do you have to wait to get married after a divorce in South Africa?

You can get married immediately.

How long does it take to get a divorce in Cape Town if both parties agree?

It can take about four weeks.

How long does it take to get a divorce in Cape Town if you are legally separated?

It can take about four weeks.

Do you have to be separated before you can get a divorce in Cape Town?

No, you do not have to be separated. The marriage should have irretrievably broken down.

How long does it take to get a divorce if both parties agree?

About 4 weeks.

How much does it cost to get a divorce in Cape Town?

Depending on your lawyer, about R 5 000 – 00 to R 20 000 – 00 .

What is a notice of entry of judgment in a divorce?

This does not Apply to South Africa.

How long do you have to wait to get married after a divorce?

You may get married to next day.

Posted on by Telelaw

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