What are my rights as a Muslim Spouse in South Africa with regard to property and children? I want to divorce my spouse. Does South African Law protect my rights to property and children?
Muslim Marriages concluded in the traditional sense are not the same legally as a marriage concluded in terms of South African law. For example, in terms of the Marriage Act 25 of 1961. There have been cases dealing with this problem, a prominent one being Women’s Legal Centre Trust v President of the Republic of South Africa and Others (CCT 24/21) [2022] ZACC 23; 2022 (5) SA 323 (CC); 2023 (1) BCLR 80 (CC) (28 June 2022). However, despite a person being married in terms of Muslim Rites, you still have the protection of the South African laws. This article deals with your rights regarding property and minor children.
What are my property Rights?
Parties married in terms of Muslim Rites are deemed to be married out of Community of Property without the accrual regime. Basically, what this means is that each party owns his or her own property during and after the marriage. There will be no automatic sharing of assets after the marriage unless there is another legal basis, therefore.
Parental Rights (Child Custody/Guardianship)
There is no distinction between parents who were married in terms of Muslim Rites or South African Civil law when it comes to parental rights. However, if there is a dispute, the parents of a Muslim marriage will have to approach the Court after they divorce regarding custody and child maintenance. In a civil marriage, the divorce could deal with those issues.
How do I approach the Court to enforce my parental rights for contact with my child?
If you are a parent to a child, you may approach the Children’s Court or the High Court for assistance regarding your rights to your child. It does not matter that you were married in terms of Muslim Rites.
How do I approach the Court to claim child maintenance?
You may approach the Maintenance Court in the area where you work or reside to open a case for child maintenance. That would apply whether or not you are married in terms of Muslim Rites or not.
