Rights of Divorced Muslim Parents to their children who were married in terms of Muslim Rights in South Africa
Written by Advocate Muhammad Abduroaf
What is common place when Muslim parents separate either via talak or faskh is that the issue as to what should happen to the children remains unresolved. As opposed to couples married in terms of South African Civil Law where the divorce court would deal with the issue of access (contact) and custody (care) before pronouncing a final decree of divorce; this is not the case of a talak and faskh in Muslim Marriages.
What may not be known to many Muslim parents married in terms of Muslim Rites during their marriage or at separation is that the father has just as much rights as the mothers to their children, notwithstanding them having been married in terms of Islamic Rights. From a South African Legal perspective, they are both co-holders of parental responsibilities and rights with regard to their children.
What happens often is that the one parent refuses the other reasonable contact to the child or children or takes the stance that he or she is the sole decider as to when and where the other parent may have contact to 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 and the Judge 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 would 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 can Muslim parents do when separating?
Should a couple married in terms of Muslim Rites who had 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 a family advocate or made an Order of Court. This option has become available since 1 April 2010 with the coming into effect of section 33 of the Children’s Act 38 of 2005. To read on parenting plan, visit www.ourlawyer.co.za .
If a parent refuses to try to agree on a parenting plan, the Courts then need to be approach which the parents should try to avoid. 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 interest.
By Muslim Parents and other parents in a similar situation 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 for their children notwithstanding their relationship with each other has severed.
Best of luck to all parents.
Advocate Muhammad Abduroaf
Cape Town |June 2010
If you are looking for the contact details of Advocate Muhammad Abduroaf in Cape Town, they are as follows:
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