I am a Muslim and married. What is the best legal advice you can provide to a Muslim Couple getting divorced in South Africa?

Although Muslim marriages in South Africa are not formally legislated yet, Muslims married in terms of Muslim Rites are afforded broad recognition and protection when it comes to the enforcement of their rights. However, until such time that parliament passes laws that deal explicitly with Muslim marriages and the legal consequence thereof, South Africans would be dependent on Courts to enforce their rights. It should also be noted that if a South African Court makes a ruling that affects Muslim marriages, it does not mean that the Court ruling is Shariah Compliant. The laws of Islam cannot be tainted by secular Courts, no matter how good their intentions are. Therefore, before approaching a South African court to deal with an aspect of your Islamic marriage, ensure that you first obtain the proper Sharia advice.

When is the best time to seek legal advice from an attorney or advocate if I want to divorce my spouse?

The best time to seek legal advice is before the actual talaq of faskh. You would then know your rights regarding your property, personal maintenance (alimony), child maintenance, child custody and so on. You and your spouse can then discuss these issues and come to an amicable agreement. This is the first prize, as no one wants to spend money on lawyers’ fees to resolve simple issues after divorce. It may be ideal to utilise an attorney’s services or advocate to draft a legally binding settlement agreement. If you and your spouse cannot agree regarding the item mentioned above, then unfortunately, those issues would have to be resolved in a court of law. This is what this article deals with.

How do we best deal with the issue of jointly owned property after the Islamic Divorce?

If you and your spouse own jointly owned property, for example, a house, you can continue owing it together after the marriage. However, if one of you wants to sell it and the other does not, you would need to approach the High Court to terminate the joint ownership. This can be a very long and expensive process. It would entail applying to the court for an order outlining how the property must be sold. It may first be sold via private sale and, if not possible, via a public auction. The court can also order how the proceeds should be divided. It is best to consult with an attorney or advocate in this regard.

What is the best way to resolve care and contact issues regarding minor children after a talaq or faskh?

For any legal matter, it is best to resolve issues without the need to approach a Court of Law. In the case of a Muslim marriage where there are minor children involved, it may be the best option. This is because children are negatively affected if parents litigate over them. However, it must be done if it is the only option because parents cannot see eye to eye. However, before considering litigation regarding your children, it is best to try to mediate the dispute. We suggest using a professional like a social worker, psychologist, or suitably qualified person to resolve the dispute. Most of the time, it works.

How do I apply to the Children’s Court for contact with my child?

To apply for child custody in South Africa, you may approach the Children’s Court in the area where the child resides or where the custody dispute arose. The process involves completing a form, which can be obtained from the court or downloaded from the Department of Justice and Constitutional Development’s website. You must provide details of yourself, the child, and the person you claim custody. It would be best to give reasons for your claim and any evidence that may support your case. Once the application has been submitted, the court will set a hearing date, and both parties must attend. At the hearing, the court will consider the best interests of the child and may also appoint a social worker to investigate and report on the child’s circumstances. The court may also order mediation to try and resolve the dispute amicably. It is important to note that custody disputes can be emotionally draining and stressful for all parties involved, especially the child. It is, therefore, advisable to seek legal advice and support from a family law attorney or advocate who can guide you through the process and ensure that your rights and the child’s best interests are protected.

What is the best way to resolve child maintenance issues regarding minor children after a talaq or faskh?

In South Africa, each parent must maintain their child according to their mean. This applies to all parents, whether or not they were married to each other in terms of Muslim Rites, Civil law, or not married at all. Before parents venture into a Faskh or Talaq, they need to discuss whether they will be paying for the minor children after they divorce. They must discuss who will pay the school fees, extra-mural, and medical expenses. If the child will be living with the mother primarily, then the father would need to pay the mother cash maintenance as well. This needs to be resolved as soon as possible. If the parents cannot resolve the issues regarding child maintenance amounts themselves, the parent claiming maintenance would need to approach the maintenance court as soon as possible. There is no need to wait until the marriage has first been resolved.

How do I apply for Child Maintenance if I am married Islamically?

The process to apply for child maintenance is the same for everyone. Whether or not you are married or not. You would need to approach the maintenance court in the area where the child resides or where the maintenance defaulter resides. The process involves completing a form which can be obtained from the court or downloaded from the Department of Justice and Constitutional Development’s website. You must provide details of yourself, the child, and the person you are claiming maintenance from. You will also need to provide proof of your income, the expenses incurred for the child, and the expenses of the person from whom you are claiming maintenance. Once the application has been submitted, the court will set a hearing date, and both parties must attend. At the hearing, the court will consider the financial circumstances of both parties and make a maintenance order, which will determine the amount of maintenance that needs to be paid.

I require legal assistance after my Talaq or Faskh. What is the best way to obtain legal advice or assistance?

If you require legal advice or assistance before or after your Talaq or Faskh, schedule an appointment using the link www.ourlaywer.co.za/advice. We would be able to advise and assist you where necessary.
Posted on by Telelaw

I am a Muslim and married. What is the best legal advice you can provide to a Muslim Couple getting divorced in South Africa?

Although Muslim marriages in South Africa are not formally legislated yet, Muslims married in terms of Muslim Rites are afforded broad recognition and protection when it comes to the enforcement of their rights. However, until such time that parliament passes laws that deal explicitly with Muslim marriages and the legal consequence thereof, South Africans would be dependent on Courts to enforce their rights.

It should also be noted that if a South African Court makes a ruling that affects Muslim marriages, it does not mean that the Court ruling is Shariah Compliant. The laws of Islam cannot be tainted by secular Courts, no matter how good their intentions are. Therefore, before approaching a South African court to deal with an aspect of your Islamic marriage, ensure that you first obtain the proper Sharia advice.

When is the best time to seek legal advice from an attorney or advocate if I want to divorce my spouse?

The best time to seek legal advice is before the actual talaq of faskh. You would then know your rights regarding your property, personal maintenance (alimony), child maintenance, child custody and so on. You and your spouse can then discuss these issues and come to an amicable agreement. This is the first prize, as no one wants to spend money on lawyers’ fees to resolve simple issues after divorce. It may be ideal to utilise an attorney’s services or advocate to draft a legally binding settlement agreement.

If you and your spouse cannot agree regarding the item mentioned above, then unfortunately, those issues would have to be resolved in a court of law. This is what this article deals with.

How do we best deal with the issue of jointly owned property after the Islamic Divorce?

If you and your spouse own jointly owned property, for example, a house, you can continue owing it together after the marriage. However, if one of you wants to sell it and the other does not, you would need to approach the High Court to terminate the joint ownership. This can be a very long and expensive process. It would entail applying to the court for an order outlining how the property must be sold. It may first be sold via private sale and, if not possible, via a public auction. The court can also order how the proceeds should be divided. It is best to consult with an attorney or advocate in this regard.

What is the best way to resolve care and contact issues regarding minor children after a talaq or faskh?

For any legal matter, it is best to resolve issues without the need to approach a Court of Law. In the case of a Muslim marriage where there are minor children involved, it may be the best option. This is because children are negatively affected if parents litigate over them. However, it must be done if it is the only option because parents cannot see eye to eye.

However, before considering litigation regarding your children, it is best to try to mediate the dispute. We suggest using a professional like a social worker, psychologist, or suitably qualified person to resolve the dispute. Most of the time, it works.

How do I apply to the Children’s Court for contact with my child?

To apply for child custody in South Africa, you may approach the Children’s Court in the area where the child resides or where the custody dispute arose. The process involves completing a form, which can be obtained from the court or downloaded from the Department of Justice and Constitutional Development’s website. You must provide details of yourself, the child, and the person you claim custody. It would be best to give reasons for your claim and any evidence that may support your case.

Once the application has been submitted, the court will set a hearing date, and both parties must attend. At the hearing, the court will consider the best interests of the child and may also appoint a social worker to investigate and report on the child’s circumstances. The court may also order mediation to try and resolve the dispute amicably.

It is important to note that custody disputes can be emotionally draining and stressful for all parties involved, especially the child. It is, therefore, advisable to seek legal advice and support from a family law attorney or advocate who can guide you through the process and ensure that your rights and the child’s best interests are protected.

What is the best way to resolve child maintenance issues regarding minor children after a talaq or faskh?

In South Africa, each parent must maintain their child according to their mean. This applies to all parents, whether or not they were married to each other in terms of Muslim Rites, Civil law, or not married at all. Before parents venture into a Faskh or Talaq, they need to discuss whether they will be paying for the minor children after they divorce. They must discuss who will pay the school fees, extra-mural, and medical expenses. If the child will be living with the mother primarily, then the father would need to pay the mother cash maintenance as well. This needs to be resolved as soon as possible.

If the parents cannot resolve the issues regarding child maintenance amounts themselves, the parent claiming maintenance would need to approach the maintenance court as soon as possible. There is no need to wait until the marriage has first been resolved.

How do I apply for Child Maintenance if I am married Islamically?

The process to apply for child maintenance is the same for everyone. Whether or not you are married or not.
You would need to approach the maintenance court in the area where the child resides or where the maintenance defaulter resides. The process involves completing a form which can be obtained from the court or downloaded from the Department of Justice and Constitutional Development’s website. You must provide details of yourself, the child, and the person you are claiming maintenance from. You will also need to provide proof of your income, the expenses incurred for the child, and the expenses of the person from whom you are claiming maintenance. Once the application has been submitted, the court will set a hearing date, and both parties must attend. At the hearing, the court will consider the financial circumstances of both parties and make a maintenance order, which will determine the amount of maintenance that needs to be paid.

I require legal assistance after my Talaq or Faskh. What is the best way to obtain legal advice or assistance?

If you require legal advice or assistance before or after your Talaq or Faskh, schedule an appointment using the link www.ourlaywer.co.za/advice. We would be able to advise and assist you where necessary.

Related Post

Do you own Divorce (DIY) No lawyers needed!

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If you want to get divorced from your spouse, I strongly advise that your approach a legal practitioner, or an attorney to attend to it on your behalf. This I would implore even more under the following circumstances:
  • There will be a dispute over care and visitation rights over the child/children
  • One of the parties will be applying for forfeiture of patrimonial benefits from a marriage in community of property;
  • The joint estate is huge or complicated; or
  • The other party will be making use of legal representation.
If, however, you would like to know the general procedures on how to go about a divorce, they are listed summarily below. There are many rules that regulate divorce processes and the summary below does exclude certain of them. These include exceptions, strikeouts, compelling compliance, service addresses etc. Other matters incidental to divorce proceedings, e.g. interim arrangements, pending the divorce regarding maintenance for you or your children and care and contact regarding children are not dealt with. Therefore, please consult a legal practitioner or the divorce court throughout your divorce process should you decide to do the divorce yourself.

Summons and Particulars of Claim

A summons needs to be drafted which will be issued by the divorce court to commence the divorce process. It should have on it the details of the court you will be issuing divorce, details of the parties, e.g. names, occupation, and address etc. Every High Court in the area where you live has the authority to attend to a divorce. There are however specialized divorce courts that may attend to a divorce as well. You should then draft particulars of claim, outlining relevant matters concerning the marriage, children, reasons for wanting a divorce and what do you want the court to grant you in a divorce order. These particulars of claim you attach to the summons. Here is an example of a summons and particulars of claim for a divorce for a couple married in community of property with no children getting a divorce in the High Court in Cape Town.

Summons

IN THE HIGH COURT OF South Africa CASE NO.: (Western Cape High Court, Cape Town) In the matter between: John Smith (Plaintiff) And Jane Smith (Defendant) To the Sheriff or his/her Deputy INFORM Jane Smith (hereinafter referred to as the defendant an adult female, self-employed as a singer currently residing at 12 Club Road, Waterfront, Western Cape and whose full and further particulars are unknown, That: John Smith (hereafter referred to as the plaintiff), an adult male self-employed painter residing at Garden Road, Cape Town, Western Cape, Hereby institutes an action against her in which action the Plaintiff claims the relief and on the grounds set out in the particulars annexed hereto marked A. INFORM the Defendant further that if she disputes the claim and wishes to defend the action she shall (a) within 10 (TEN) days after the service upon her of this Summons, file with the Registrar of this Court at Kieron Street, Cape Town a notice of her intention to defend, and serve a copy thereof on the Plaintiff, on which notice shall be given an address (not being a post office or poste restante) referred to in Rule 19(3) for the service upon the Defendant of all notices and documents in the action; and (b) thereafter, and within 21 (TWENTY-ONE) court days after the filing and serving such notice of intention to defend as aforesaid, file with the Registrar and serve upon the Plaintiff a Plea, Exception, Notice to strike out, with or without a counterclaim. INFORM the Defendant further that if she fails to file and serve notice as aforesaid, judgment as claimed may be given against her without further notice to her, or if having filed and served such notice, she fails to plead, except, make application to strike out or counterclaim, judgment may be given against her. INFORM the Defendant also that if she does not intend to defend the action, she will inform the Registrar in writing to enable the Registrar to, on request in writing from Plaintiff, immediately set the matter down for hearing. AND IMMEDIATELY THEREAFTER serve on the Defendant a copy of this Summons and return same with whatsoever you have done thereupon. DATED AT CAPE TOWN ON THIS ____ THE DAY OF _________2018.   ……………………………………………………………… REGISTRAR OF THE HIGH COURT   ……………………………………………………………… Plaintiff in Person __________________________  

Particulars of Claim “A”

  (A) Parties Plaintiff is John Smith, an adult male Bus Driver, residing at no. 5 Truck Apartments, Cape Town, Western Cape. The defendant is Jane Smith (born Smit) an adult female, employed as a hairdresser, residing at Hectic House, 2 Main Road, Strand, Western Cape.  

(B) Marriage

Plaintiff and Defendant (hereafter referred to together as “the Parties”) married each other on 10 August 2003 at Pretoria, in community of property and the marriage still subsists. Kindly find attached hereto a copy of the marriage certificate marked “MC”. The Parties are domiciled within the area of jurisdiction of this honourable court. There are no children born out of the marriage.  

(C) Irretrievable breakdown

The marriage between the Parties has irretrievably broken down and there are no reasonable prospects of the restoration of a normal marital relationship between them in that: Defendant left the common home approximately 2 years ago; There is no love and affection, understanding and communication between the parties; The Parties are incompatible and continue arguing; and Plaintiff has a gambling problem.  

(D) Prayer

WHEREFORE Plaintiff prays for Judgement against Defendant in the following terms:   A decree of divorce; Each party retain the property in his or her possession as his or her sole property; Cost if this action is opposed; and Further and/ or alternative relief.   DATED AT CAPE TOWN ON THIS THE ______ DAY OF______ 2018.   _____________________________ Per: John Smith (Plaintiff in Person)   Service Address     Once you have your summons and particulars of claim in order, make three (3) copies of your set of documents and have it issued at court.

Issuing & Service of Summons

Once you are at the court, go to the clerk of the court and have your documents issued. The clerk will sign the summons and provide a case number and write it on the summons. You should then take the original and a copy (both must be signed and stamped by the clerk of the court) and take it to the sheriff which serves documents where your spouse works of lives. You can ask the clerk of the court for that details. The extra—copy of the summons & particulars of claim you keep for your file and records.

Notice of intention to defend

Once the sheriff has served the documents, your spouse has a defined period to inform your whether he or she will be defending the divorce. This information is outlined in the summons as shown above.

Plea to particulars of claim

Once you received notice of your spouse’s intention to defend the divorce, about a months later, your spouse or their attorney will serve and file a plea. The plea will outline which parts of your particulars of claim your spouse agrees (or disagree) with which would give a direction of what to prove in court.

Counter Claim

Your spouse might want to file a counterclaim. In the same way, which you outlined your case as to what you want from the court and the reasons therefore in your particulars of claim, your spouse can file on your as well a counterclaim.   A counterclaim might still be filed if your spouse agrees to a divorce, by maybe wants care of the children, but in your particulars of claim, you asked for care. You should then within 10 (ten) days plead to the counterclaim the same manner in which your spouse pleaded to your particulars of claim.

Obtaining a Trial date

Once you received the plea, without a counterclaim, or have pleaded to your spouse’s counterclaim, you should then approach the clerk of the court for a trial date. This you or your spouse may do.

Discovery

While you waiting for a trial date, and way before the trial, you may ask or may be asked to provide, under oath, a schedule of books and documents in your possession and under your control relating to the divorce. This could be policy documents, deeds etc, and which you or your spouse might want to make use of at trial. Once you received this schedule you may inspect and request copies of the documents.

Divorce day / Trial

If your spouse does not defend the divorce within the time period, go back to court and ask for an unopposed divorce date and attend to your divorce on that date. If, however, your divorce is defended, a trial will ensure. During the trial, each party will prove his or her case. Witnesses will be called and at the end, the Magistrate or Judge will deliver the verdict. Best of luck, and please, don’t take my word, contact a legal practitioner should you decide to get divorced.  

Sharing is Caring

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This and other articles and posts found on this website are written by Adv. Muhammad Abduroaf to assist people with various family law related issues they may have. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. For more interesting articles and information on Family Law, view our articles and Q&A page. If you have a family law related legal issue and you want someone to answer or reply to it, feel free to post it on our Family Law Blog. Therefore, kindly like and share. Should you require any other legal services and advice, not related to family law, visit Private Legal.
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I need Child Maintenance for my Child. How to Apply for Child Maintenance – Advocate Muhammad Abduroaf

In this video, Advocate Muhammad Abduroaf discusses how to apply for child maintenance for your child. [embed]https://youtu.be/aYimnEJP-Mg[/embed] Family Law with Adv. Muhammad Abduroaf Visit: https://abduroaf.co.za Post your live questions on https://www.facebook.com/AdvMuhammadAbduroaf/live/ Please like the page https://www.facebook.com/AdvMuhammadAbduroaf/ for future live videos and interaction. LIVE Q&A ON FAMILY LAW WITH ADVOCATE MUHAMMAD ABDUROAF Our Lawyer (Pty) Ltd [email protected] 0211110090 Consult with us today. Visit www.ourlawyer.co.za/advice . Child Custody, Child maintenance, Domestic violence, Guardianship rights, Spousal maintenance, Divorces, Unopposed divorces, Opposed divorces, Family Law, Mediation, Family disputes, Relocation of minor children, Minor children passport application consent, Non-compliance with maintenance orders, Reduction of Maintenance Order, Increase of Maintenance Orders, Parenting Plans, Parental Plan, Custody Agreements, Custody Orders, Contempt of Court, Litigation, Antenuptial Contract, Prenuptial Contracts, Wills, Estates, Abuse, Economic Abuse, Gender-based Violence. Attorney legal services, Advocate legal services, Lawyer legal services. Online and telephonic legal advice, Eastern Cape Free State Gauteng KwaZulu-Natal Limpopo Mpumalanga Northern Cape North West Western Cape   Eastern Cape Alice, Butterworth, East London, Graaff-Reinet, Grahamstown, King William’s Town, Mthatha, Port Elizabeth, Queenstown, Uitenhage, Zwelitsha Free State, Bethlehem, Bloemfontein, Jagersfontein, Kroonstad, Odendaalsrus, Parys, Phuthaditjhaba, Sasolburg, Virginia, Welkom, Gauteng Benoni, Boksburg, Brakpan, Carletonville, Germiston, Johannesburg, Krugersdorp, Pretoria, Randburg, Randfontein, Roodepoort, Soweto, Springs, Vanderbijlpark, Vereeniging, KwaZulu-Natal Durban, Empangeni, Ladysmith, Newcastle, Pietermaritzburg, Pinetown, Ulundi, Umlazi, Limpopo, Giyani, Lebowakgomo, Musina, Phalaborwa, Polokwane, Seshego, Sibasa, Thabazimbi Mpumalanga, Emalahleni, Nelspruit, Secunda, North West, Klerksdorp, Mahikeng, Mmabatho, Potchefstroom, Rustenburg, Northern Cape, Kimberley, Kuruman, Port Nolloth Western Cape Bellville, Cape Town, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester   Contact us today. #advocate #familylaw #lawyer #attorney #legal #court #child #custody #divorce #relocation #guardianship

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