I am currently married in terms of Muslim Rites. I want legal assistance regarding my divorce. What can I do?

In South Africa, there are close to a million Muslims. That is a minimal number compared to the entire population of South Africa. When a Muslim gets married, they need to follow the prescripts of Islam. The same applies to when they get divorced. This would either be via a Talaq of Faskh or other lawful manner. Therefore, lawyers would not get involved regarding the issue of the actual Talaq of Faskh. Lawyers would, however, get involved in property aspects or issues regarding minor children. This is what this article will deal with.

How do I resolve property disputes post-my Muslim marriages?

Spouses married in terms of Muslim Rites in South Africa would own their property. They are, therefore, not married in community of property where all their assets and liabilities are shared. In an Islamic marriage, the wife would own her property, and the husband would own his property. It can be compared to being married out of community of property without the accrual regime. Therefore, unless your spouse owes you money or you want to resolve the issue of a jointly owned property, there would not be a claim against your spouse’s estate. If there is a specific reason why you think you are entitled to claim from the estate of your spouse at the time of your Muslim marriage divorce, then we strongly recommend you consult with a lawyer in this regard—for example, Universal Partnership.

How do I resolve Child Care and Contact disputes post-Muslim marriage?

There is no distinction between the rights and responsibilities of parents or children who marry each other in terms of Muslim Rights or Civilly (in Court or terms of the Marriage Act). Therefore, your case would be dealt with just as if you were married to your ex-spouse in terms of the laws of South Africa. However, because your marriage was dissolved in terms of a Faskh or Talaq, or not via a divorce court (where parental rights are dealt with at the divorce), you would need to resolve any disputes regarding care and contact after the Faskh or Talaq in a Court or law. You may either approach the Children’s Court or the High Court.

How do I resolve child Maintenance disputes, post-Muslim marriages?

Whether parents are married or not, their obligations towards the maintenance of their children remain the same. In other words, a person who was married in terms of Muslim Rites or Civil law has no greater or lesser obligation to maintain their child than a parent who was not married. Unless a court dissolves your marriage and resolves the issue of child maintenance, you would need to approach the maintenance court for a maintenance order. In the case of a Mulsim divorce, that would happen after the Faskh or Talaq was finalised. However, any parent can approach the maintenance court for child maintenance at any time. They can do this while married, separated or after their divorce. You can also approach the court for a variation of the maintenance order for either an increase or decrease in child maintenance.

Do you require assistance with the legal issues regarding your Muslim marriage and divorce (Faskh or Talaq)?

Please get in touch with us if you require legal assistance with any aspect of your Muslim Faskh or Talaq. You may schedule a consultation using the link www.ourlawyer.co.za/advice.
Posted on by Telelaw

I am currently married in terms of Muslim Rites. I want legal assistance regarding my divorce. What can I do?

In South Africa, there are close to a million Muslims. That is a minimal number compared to the entire population of South Africa. When a Muslim gets married, they need to follow the prescripts of Islam. The same applies to when they get divorced. This would either be via a Talaq of Faskh or other lawful manner. Therefore, lawyers would not get involved regarding the issue of the actual Talaq of Faskh. Lawyers would, however, get involved in property aspects or issues regarding minor children. This is what this article will deal with.

How do I resolve property disputes post-my Muslim marriages?

Spouses married in terms of Muslim Rites in South Africa would own their property. They are, therefore, not married in community of property where all their assets and liabilities are shared. In an Islamic marriage, the wife would own her property, and the husband would own his property. It can be compared to being married out of community of property without the accrual regime.
Therefore, unless your spouse owes you money or you want to resolve the issue of a jointly owned property, there would not be a claim against your spouse’s estate. If there is a specific reason why you think you are entitled to claim from the estate of your spouse at the time of your Muslim marriage divorce, then we strongly recommend you consult with a lawyer in this regard—for example, Universal Partnership.

How do I resolve Child Care and Contact disputes post-Muslim marriage?

There is no distinction between the rights and responsibilities of parents or children who marry each other in terms of Muslim Rights or Civilly (in Court or terms of the Marriage Act). Therefore, your case would be dealt with just as if you were married to your ex-spouse in terms of the laws of South Africa. However, because your marriage was dissolved in terms of a Faskh or Talaq, or not via a divorce court (where parental rights are dealt with at the divorce), you would need to resolve any disputes regarding care and contact after the Faskh or Talaq in a Court or law. You may either approach the Children’s Court or the High Court.

How do I resolve child Maintenance disputes, post-Muslim marriages?

Whether parents are married or not, their obligations towards the maintenance of their children remain the same. In other words, a person who was married in terms of Muslim Rites or Civil law has no greater or lesser obligation to maintain their child than a parent who was not married.
Unless a court dissolves your marriage and resolves the issue of child maintenance, you would need to approach the maintenance court for a maintenance order. In the case of a Mulsim divorce, that would happen after the Faskh or Talaq was finalised. However, any parent can approach the maintenance court for child maintenance at any time. They can do this while married, separated or after their divorce. You can also approach the court for a variation of the maintenance order for either an increase or decrease in child maintenance.

Do you require assistance with the legal issues regarding your Muslim marriage and divorce (Faskh or Talaq)?

Please get in touch with us if you require legal assistance with any aspect of your Muslim Faskh or Talaq. You may schedule a consultation using the link www.ourlawyer.co.za/advice.

Related Post

Relocation with my minor child to Russia, Moscow (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 Moscow, Russia

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 nine or ten) 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 Worcester or Rustenburg, South Africa, and you want to relocate to Moscow, Russia, 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 Moscow, Russia?

The same applies when it comes to your minor child applying for a South African passport to relocate to Russia, 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 Moscow, Russia with my minor child? There is there another 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 Moscow, Russia.

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

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 Moscow, Russia, 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 Moscow, Russia. 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 Moscow, Russia, 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 Moscow, Russia?

If the other parent does not want to consent to the passport application and/or the relocation of the minor child to Moscow, Russia – 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 Moscow, Russia, 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 Moscow, Russia

If you require legal assistance or representation with relocating to Moscow, Russia 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

History of the law of exercising contact and care rights of parents during the lockdown in South Africa – The rollercoaster ride for parents and lawyers

The national lockdown not only affected our movement by keeping us in our homes. It also affected our relationships with people important and dearest in our lives. Here we refer to family, friends and colleagues to mention a few. Before the lockdown commenced in South Africa, parents were exercising contact with their children as they always have in the past. Friends and family gatherings were not seen as a privilege but as part of daily life, and an inherent right. However, when the lockdown commenced, things drastically changed. And without warning.

The following are a few of the actual consequences of the lockdown when it comes to family relations:

  • Spouses or partners who would only see each other for part of the day, now see each other virtually the entire day;
  • Schools are closed, and parents can only care for children at their homes;
  • Children were not allowed to move between parents as they were used to at the start of the lockdown;
  • Visits to close friends and your relatives are prohibited. Therefore, adult children may not have seen their parents since the lockdown commenced.
  • Siblings, cousins and spouses living in different provinces would not have seen each other for weeks.

The commencement of the National Lockdown in South Africa

The date 27 March 2020, is of great significance to all South Africans. It is the day were all South African’s were placed under lockdown. This was something no South African was prepared for. The call was imminent. The life we lived before that day, would not be lived for quite some time to come. Now let us look at the regulations dealing with the movement of children during the lockdown.

First Regulations regarding the movement of children during the lockdown

Regulations were then issued concerning the movement of children. In terms of the Regulations at the time, minor children were to remain in the care of the parent who had the child at the time. Have a look at an article written by Adv. Muhammad Abduroaf on this issue: “The child must remain in the custody of the parent with whom the child was with when the lockdown period started” – Directive 6(m)(ii) in terms of the Regulations [30 March 2020] This caused huge challenges for many parents. It meant that a parent who never cared for a child for longer than a day would now have to care for the child for the entire lockdown period. This also caused a huge stir. Not only for parents but also for the legal profession, especially for a lawyer who specialises in family law.

Second set of Regulations regarding the movement of children during the lockdown

The Regulations then changed, allowing movement as long as you have a registered parenting plan, or a parental rights and responsibilities agreement, both registered with the Office of the Family Advocate, or an Order of Court. This was also problematic as parents who did not have the latter documents could not have contact with their minor children. Have a look at an article written by Adv. Muhammad Abduroaf on this issue entitled: New lockdown regulations regarding the movement of children – Certain Parents may move children during the National Lockdown period No equality and dignity for parents without Court Order and Registered Plans and Agreements  

Third set of Regulations regarding the movement of children during the lockdown

Then the regulations were again changed. It further allowed for the movement of children of parents who do not have a registered parenting plan, or a registered parental rights and responsibilities agreement or an Order of the Court. They may move from one home to another to collect and return their minor child with one requirement. They must have in their possession the birth certificate of the child, or a certified copy thereof. Have a look at an article written by Adv. Muhammad Abduroaf on this issue entitled: Latest Regulations: No Court order, registered agreement or parenting plan is required for the movement of children during the lockdown – 16 April 2020.

Fourth set of Regulations regarding the movement of children during the lockdown

Then came the recent regulations which have been issued after the extended lockdown in May 2020. In essence, parents may move with their child if they have a registered parenting plan, or a parental rights and responsibilities agreement or an Order of the Court. Another requirement was that the home the child is to move to is free from COVID-19. You will note that the birth certificate requirement for the parents who do not have the latter documents no longer applies. If parents do not have a registered parenting plan, or a registered parental rights and responsibilities agreement or an Order of the Court, they may collect and drop-off the child only after they obtained a Magistrate’s Permit. A parent who has rights of contact needs to approach the magistrate in the area where he or she lives to obtain a permit to move the child. Have a look at these two posts on the topic. The Magistrate’s Permit – 3 steps to obtain your permit to collect your child during lockdown The Magistrate’s Permit – New regulations on Movement of children during the Lockdown It should be noted that the permit does not give you rights of care and contact. It only allows you to move the child. So, if the police stop you, you can show them the permit. If you and the other parent have disputes regarding contact, you cannot use the permit as a way of enforcing contact. That must be resolved at a court of law. Therefore, if you visit the child to collect him with a permit, and the other parent refuses you contact, you still need to approach the relevant court.

Fifth set of Regulations regarding the movement of children during the lockdown

On Thursday 28 May 2020, the Minister issued regulations which took effect on 1 June 2020. This was when level 3 of the lockdown was implemented in South Africa. The regulations regarding the movement of children remained largely the same, except for the inter-provincial movement of children and student in relation to attending their places of learning. In short, the head of the school, or institution of higher learning must issue a certificate for the purposes of travelling between provinces. The regulations can be downloaded here.

Future regulations regarding the movement of children during the lockdown

As can be seen from the aforesaid, the government has thus far issued 5 (five) sets of regulations regarding the movement of children between parents. Depending on how the fight of the COVID-19 pandemic unfolds, it may call for changes to the regulations on the movement of children. 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