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    
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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

 

 

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Divorce – Questions and Answers on the Process and Procedure

advice-child-maintenance-child-custody-divorceDivorces signify the end of marriages. However, it can also be seen as a beginning of a new life. Once a couple has tried everything to save their marriage, to no avail, a divorce is an inevitable consequence. With divorces, comes the law. Only a court can legally divorce you. And because of this, people have many questions on the divorce procedure and process. This post is intended to assist parties whose marriage had irretrievably broken down by answering frequently asked questions on divorces. Due to the nature of legal matters, it is best to make use of an attorney or get the advice of a legal professional when dealing with a divorce. However, we intend giving you a general overview of the divorce process below with the assistance of Adv. Muhammad Abduroaf.

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Divorce – Things to Consider

There are a few things to consider when proceeding with a divorce. Depending on the issues involved, it would determine how quick or how complicated your divorce could be. They are as follows:

Minor Children in divorces

As a consequence of marriage, are children. If your children are 18 years or older at the time of the divorce, they would not be a factor, as they are adults. However, if they are younger than 18 years old, their interests are affected in the divorce process. The Court won’t divorce you unless it is satisfied that their best interests are taken care of. When a divorce settlement is reached, the settlement should be taken to the Office of the Family Advocate. The Family Advocate would then study the document, and, if they are satisfied with it, enforce it. If they are not happy with it or have any issues, they will usually provide it in a cover letter. Factors to consider are the following:
  • Child Maintenance
  • Primary Residence
  • Parental Responsibilities and Rights of Care and Contact
  • Guardianship
  • Facilitation or Dispute Resolution
The Court is however not bound by the views of the Family Advocate. The Court would consider it, however, if the Court feels that the settlement agreement or recommendations of the Family Advocate is not in the child’s best interests, it would then make the appropriate order. In our view, if the parents came to an agreement, and they believe it is workable, it would most of the time be in the children’s best interests for the agreement to be made an Order of Court. Purchase our Unopposed Divorce Package, click here.

Matrimonial Property Regime

The Matrimonial Property Regime the Parties are married in is an important aspect to consider when getting divorced. This we unpack next.

In Community of Property

The default Matrimonial Property Regime is that of “In Community of Property”. What this basically means is that there is one joint estate. In other words, there are no longer two separate estates. By way of example, if the husband takes out a loan, the wife is also responsible to repay it. This is so as the Joint Estate incurred the debt. The husband could not have incurred the debt solely as he does not have a separate estate.

Out of Community of Property

It has become the trend for people to get married “Out of Community of Property”. What this means is that there are two separate estates. It is as if you are not married. The wife can enter into loans and agreements without the consent of her husband, and his estate would not be affected by that. There are however two variables to being married Out of Community of Property. That is married Out of Community of Property with the inclusion of the accrual regime, and the other without.

Accrual Regime Included in Your Marriage

If the accrual regime is not specifically excluded in the Ante-nuptial Contract, then it is by default included. What this means, is that during the marriage, there are two separate estates. You can do what you please without the consent or consideration of the other party’s estate. However, at divorce, or death of one of the parties, you must share in half the difference of the accruals of each estate. So, for example, if the accrual regime applies, and at divorce, the husband’s estate is worth R 10 000 – 00 and the wife’s estate is worth R 5 000 – 00; then he should pay her R 2500 – 00 in cash. The same would apply at death. Both parties would, therefore, leave the marriage with the sum of R 7 500 – 00. This regime would be beneficial where the wife or husband stays at home, looking after the household and children. The other spouse would be working on building an empire.

Accrual Regime Expressly Excluded in your marriage

Let’s say the parties got married Out of Community of Property. However, in their Ante-nuptial contract, they specifically excluded the accrual regime. In that case, there would be two separate estates during the marriage. And at divorce or death, there would still be two separate estates and neither spouse would have to pay the other spouse any amount. If both spouses are working during the marriage, building their own empires, then this regime would be a better option.

Pension Funds in Divorces

Pension funds would apply to marriages in Community of Property, and where the accrual regime applies, to marriages out of Community of Property. When the parties divorce, in the case of a marriage in Community of Property, a spouse has a claim to half the Pension Fund of the other spouse. If they are married Out of Community of Property with the accrual regime, then the value of the pension fund is taken into consideration when determining the accrual. Therefore, if both the pension funds are the same in value, and both parties have the same amount of assets; there would be no accrual. This would be so if all else is equal. Next, we move to the divorce process and procedure, written by Adv. Muhammad Abduroaf. Pictures are provided for some assistance.

The Divorce Process

Some advice from Adv. Muhammad Abduroaf

First, some Legal Advice

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 shall 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 shall be making use of legal representation.

General Divorce Process and Procedure

If, however, you would like to know the general procedures on how to go about in obtaining a divorce decree; they are listed summarily below. There are many rules that regulate divorce processes and the summary below does exclude some 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. Purchase our Unopposed Divorce Package, click here.

Summons and Particulars of Claim

A summons needs to be drafted which should 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 the divorce from, 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. You should then draft a 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. [caption id="attachment_6734" align="alignleft" width="800"]Divorce Process Summons - Divorce Lawyer Example of a Divorce Summons[/caption] https://www.ourlawyer.co.za/wp-content/uploads/Divorce-Summons-Divorce-Lawyer-Process-217×300.jpg

Divorce Particulars of Claim

Once you have your summons and particulars of claim in order, you have to have the summons issued. To do this, make three (3) copies of your set of documents (Summons and Particulars of Claim) and have it issued at court. [caption id="attachment_6731" align="alignleft" width="800"]Divorce Process - Divorce Atorney Example of A Particulars of Claim in a Divorce Action[/caption]

Issuing and Service of Divorce Summons and Particulars of Claim

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

Notice of intention to defend

Once the sheriff served the documents, your spouse has two weeks to inform you of whether he or she shall be defending the divorce. This information is outlined in the summons. If your spouse decided not to defend the divorce action, then after a period of two weeks has elapsed, you may set the matter down as an undefended divorce. If your spouse intends to defend the divorce, he or she would then have to file the notice of intention to defend. In this notice, you would advise the Court and the Plaintiff that you are defending the divorce, and also, provide a service address. The Service Address is the address at which the Plaintiff would send notices in the court case to you. Below, kindly find an example of a Notice of Intention to Defend. [caption id="attachment_6743" align="alignleft" width="800"]Divorce Lawyer Cape Town Notice of Intention to Defend[/caption]

Divorce Plea to particulars of claim

Once you received notice of your spouse’s intention to defend the divorce, about a month later, your spouse or his or attorney should serve and file a plea. The plea should outline which parts of your particulars of claim your spouse agrees (or disagree) with which would give a direction of what to prove at court. Purchase our Unopposed Divorce Package, click here. [caption id="attachment_6740" align="alignleft" width="800"]Plea - Divorce Process - Lawyer Plea in a Divorce Action[/caption]  

[caption id="attachment_6739" align="alignleft" width="903"] Plea in a Divorce Action[/caption]

Divorce Counterclaim or Claim in Reconvention

Your spouse might want to file a counterclaim or claim in reconvention. 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 you a counterclaim. A counterclaim might still be filed if your spouse agrees to a divorce, but maybe wants primary care of the children, but in your particulars of claim, you asked for primary care. You should then within 10 (ten) days plead to the counterclaim in the same manner which your spouse pleaded to your particulars of claim [caption id="attachment_6738" align="alignleft" width="789"]Divorce Counter Claim - Divorce Process Divorce Counter Claim[/caption]  

advice-child-maintenance-child-custody-divorceDiscovery

When you present evidence at Court, you want to be fully prepared. Therefore, all documents your spouse will be making use of at Court should be presented to you beforehand. And you should do the same. This is where discovery comes into play. 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 the schedules you may inspect and request copies of the documents. [caption id="attachment_6727" align="alignleft" width="800"]Divorce Lawyer - Process Request for Discover Notice[/caption]  

[caption id="attachment_6726" align="alignleft" width="800"]Divorce Lawyer - Process Discovery Notice[/caption]

Discovery Affidavit

After receiving a notice requesting a spouse to discover, an affidavit should be provided. The wording of the Affidavit can be seen in the pictures below. [caption id="attachment_6723" align="alignleft" width="800"]Divorce Law - Process Example of a Discovery Affidavit[/caption]

[caption id="attachment_6725" align="alignleft" width="800"]Divorce Process - Lawyer Discovery Affidavit[/caption]

[caption id="attachment_6724" align="alignleft" width="800"]Divorce Lawyer Discovery Affidavit[/caption]

Obtaining a Trial date for the Divorce

Once you received the plea, with or without a counterclaim, or have pleaded to your spouse’s counterclaim, and discovery is done, one should then approach the clerk/registrar of the court for a trial date. This you or your spouse may do. This process is a bit complicated, so it’s best to do it with the guidance of a lawyer or the clerk/registrar of the court. Purchase our Unopposed Divorce Package, click here.

Pr-Trial Procedure

Before a date gets allocated to you for the divorce, the Court would want to ensure that your matter is trial ready. What this basically means, is that all that needs to be done, has been attended to and the trial will run. Many months are spent waiting for a court date, and it would be unfair to the court if a judge and other litigants are appointed to a matter, and the matter does not proceed. A judge will meet with the parties in chambers, and once the matter is trial ready, he or she will endorse the file in that regard.

Divorce day / Trial / Unopposed hearing date

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 should ensure. During the trial, each party should prove his or her case. Witnesses should be called and at the end, the Magistrate or Judge shall deliver the verdict. Best of luck, and please, don’t take my word, contact a legal practitioner should you decide to get divorced. Advocate Muhammad Abduroaf advice-child-maintenance-child-custody-divorce [caption id="attachment_6758" align="alignleft" width="300"]Divorce Lawyer and Process Divorce Lawyer and Process[/caption]
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