|
PERSONAL RIGHTS OF MUSLIM
MINORITIES IN A NON-MUSLIM COUNTRY- With Focus on Marriage, Polygamy,
Divorce and Custody By Dawood Terblanche,
M. Ihsaan Taliep, Faeeza Vaid and Sedick Samodien |
Summary
Marriage in Islam is a sanctified union between a male and female. This is substantiated in the affirmative evidence from the Qur’ān and Sunnah (Prophetic way). Also, in Islām, marriage is viewed as a civil contract; yet the consequent rights and responsibilities upon it are of such importance to the welfare of humanity, that a high degree of sanctity is attached to it.
However, in spite of the sacredness of the character of the marital tie, Islām recognizes divorce in cases when marital relations are poisoned to a degree which makes a peaceful home life impossible. One such ground in the South African Law is the practice of polygamy.
According to Islamic law polygamy is permissible, although restrictions and conditions exist to protect all parties in this union. However, in reality this practice now often occurs unrestricted, with little or no consideration for the rights of women. This has contributed to many divorce actions.
Divorce gives rise to the issue of custody. In Islām, custody is referred to as hadānah. While guardianship in its widest sense includes custody, this paper is only confined to hadānah (Custody).
We therefore
divided this research topic into these four key areas as follows:
Marriage - Dawood
Terblanche
Polygamy - M. Ihsaan Taliep
Divorce - Faeeza
Vaid
Custody - Sedick
Samodien
We all attempt a
comparative analysis between the Islamic Law and South
African Law approaches to the above topics, and ask ourselves whether the
implementation of Muslim Personal Law in
Dawood Terblanche
Introduction
Marriage of early Germanic people was contracted between two families, rather than the husband and the wife. The husband paid the father of the bride or the legal guardian ‘pretium nuptiale, wed – hence ’ (dowry) usually in the form of cattle, which was handed over in the presence of both families. In return, the father of the bride handed his daughter over to her future husband (tradition puellae). While polygamy was permitted, the rich were the only few who could afford it.[1]
The husband became the soul owner of his wife’s possessions, while she possessed nothing. However, the traditions of that time compelled the husband to give his wife a substantial gift the morning after the wedding and vice versa, which became her personal property among the gifts she received on her wedding day. The husband possessed the right to dissolve his marriage at any time, by merely returning her to her family.
At the end of the fifth century AD, the church slowly started to influence the values and customs of people. Marriage now became a contract between the two consenting parties, in which the consent of the girl needed to be obtained. The dowry was no longer given in favor of the bride’s family, but used for the benefit of the future wife. She now became eligible to have her own estate, which consisted of all her personal assets brought into her marriage, or any gift received from her family by means of charity or inheritance. However, the husband possessed the right to administer his wife’s estate, and any profits gained from it were used by the husband. He was restricted from alienating or encumbering her immoveable property without her consent. On the other hand, the wife was prohibited from entering into any legal transaction without her husband’s assistance.[2]
Polygamy became outlawed during this period and the husband could repudiate his wife anytime. He became liable for financial penalties if he divorced her without good reason. Later, divorce could be affected by formal agreement and the wife possessed the right to divorce her husband if he mistreated her.[3]
The
Evolution of Marriage in
When Jan van
Riebeeck arrived at the
On 31st December 1676, a Matrimonial court was set up by the name “Collegie van Commissarissen van Huwelyks Zaken” to administer the approval of marriage. This court consisted of two company officials and two burghers. Any person wishing to marry had to apply to this court for approval. If permission was granted, the marriage was solemnized by the minister of the Church. In 1711 this matrimonial court was amalgamated with “Collegie van Commissarissen van Kleine Zaken” under the complete name of “Collegie van Commissarissen van Klein en Huwelyks Zaken.”[5]
In 1804 Commissioner De Mist introduced the Civil Marriage Act which was later retracted by Sir David Baird on the 26th April 1806. This was substituted by a new act “Marriage by Special License” on 20th March 1818. On 7th September 1838 detailed provisions were made for the marriage act; provisions for marriage by banns and special license, the appointment of marriage officers and introduction of a marriage register. Later in 1875 the Ante - nuptial was introduced as an option. In 1889 a new Act was introduced “Marriage License Law 7 of 1889” which empowered magistrates to grant marriage licenses.[6]
The Marriage Law Amendment Act 8 of 1935 increased the age of marriage from 14 to 18 years in the case of boys, and from 12 to 16 years in the case of girls. This law was later amended in 1970, which lowered the age of girls suitable for marriage from 16 to 15 years.[7]
On 1 July
1979 the Divorce Act was in full operation, but only on the 1 November 1984 was
it enacted in accordance with Matrimonial Property Act, which granted the wife
equal powers and status with her husband. This allowed the spouses to change
the matrimonial property system from the community of property to the accrual
system (a German Model), with the consent of the court. Many South Africans
today opted for marriage in Community of Property, but which system proves more
beneficial remains a question. The monogamous marriage of the Roman Dutch Law which
came to
Marriage in Islam
Marriage in Islam is a sanctified union between a
male and female. This is substantiated in the affirmative evidence from the Qur’ān
[9]
and Sunnah.[10]
Marriage under the South African Marriage Act
includes a customary marriage which is defined as; “the association of a
man and a woman in a conjugal relationship according to indigenous law and
custom, where neither the man nor the woman is party to a subsisting marriage,
which is recognized by the Minister in terms of section 1 (4) of the South
African Citizenship Act 88 of 1995.”[11]
Although provision has been made for the acceptance of certain customary
marriages, to date the Muslim marriages remains unrecognized.
In Islam marriage is a form of worship and is the only worship in
which the Prophet (pbuh) refers to as Sunnatī (my Prophetic way).[12]
The reason for marriage is widely discussed in Islām and is extant under
the Marriage Act of South Africa. According to Ibn Qudāmah, with regards
to marriage, people are divided into three categories. One who fears he might
commit wrong (zinā), marriage is wājib (compulsory) upon him,
one who has the desire for marriage, marriage is mustahab
(recommendable) upon him, and one who does not have the desire for marriage,
either because he was created that way, or it disappeared due to a sickness. In
this case marriage may be mustahab (due to previous ahādīth
discussed) or it may be better that he remains single, because he might not be
capable of fulfilling the shar`ī
requirements of marriage.[13]
According to Ibn Qayyim al – Jawzī, the primary objective of marriage is
procreation.[14] This
view is corroborated by the hadīth of the Prophet (pbuh), in which
a man came to the Prophet (pbuh) wishing to get married. He explained to the
Prophet (pbuh) that the woman was beautiful and wealthy but unable to bare
children. The Prophet (pbuh) discouraged him and said, “Marry those who are
fertile…”[15]
In most of the modern legal systems, a requirement
for determining a valid marriage, is derived from the individual’s freedom to
decide when and whom to marry.[16] In
Islām, the validity of an official marriage is subjected to; consent,[17]
a marriage officer and two witnesses.[18]
Under the Marriage Act, no marriage officer shall
solemnize a marriage between parties of whom one or both are minors unless
consent by the parent, parents or legal guardians has been granted and
furnished in writing.[19]
No boy under the age 18 or girl under the age of 15, shall be capable of
contracting a valid marriage without written consent. Consent to marriage must
be granted by both parents. If the parents are divorced, it may be granted by
one of them by whom the child is living. If the child is born out of wedlock,
consent of the mother is sufficient as she is the legal guardian. In terms of
Act 86 of 1997 (Natural Fathers of Children Born out of Wedlock) the court may
award full guardianship to the father of an extra-marital child. In the absence
of the parent (due to death), the consent of the legal guardian or guardians
must be obtained.
According to the majority of Islamic scholars,
consent to the marriage must be granted. A clear distinction is made between a
woman who has been married before, and a woman entering into marriage for the
first time. If a marriage was contracted without the consent of the walī
(Islamic legal guardian) it may be considered invalid.[20]
This was the view of a number of great companions of Prophet (pbuh), Tābi`īn
and prominent Fuqahā’[21]
based upon the prophetic narration; “any women who marries without the consent
of her walī, her nikāh is bātil
(invalid).”[22]
The guardian may not consent between himself or
herself and the minor. The Qur’ān[23]
and the Sunnah[24] is not silent on whom a man may and not marry.
Section 26 (1) of the Marriage Act provides, that consent may be granted by the
Minister of Home Affairs in the complete absence of parents or legal
guardians. However, if contracted without written consent, the Minister
or officer may consider such a marriage
to be favorable and in the interest of both parties, and in accordance with the
provisions of the Marriage Act or any prior law, may, in writing, direct it to
be a valid marriage. Permission in writing may also be granted by the Minister
of Home Affairs or an officer, prior to the solemnization thereof,[25]
in the absence of the parent, parents and legal guardian. In the absence of a mahram (Islamic legal guardian), the sultān may
grant a woman permission to contract a marriage.[26]
A South African court may declare a marriage null
and void on the grounds of non – compliance with the act of a civil marriage;
if it was performed by an incompetent marriage officer, if the girl is below 15
years or the boy below 18 years, without written consent of the Minister of
Home Affairs, in the absence of witnesses, if the couple to be married is
related, couple is in a polygamous marriage, one of the parties is mentally
ill.[27]
Section 29 of the Marriage Act allows a marriage
officer to solemnize any marriage in any building used for religious services,
or in a public office or private dwelling house, and in the presence of the
future husband and wife, and in the presence of at least two competent
witnesses.[28]
The provisions contained in the Marriage Act allows
any marriage officer as designated in law, to any marriage formula observed by
his religious denomination or organization, if such a formula has been approved
of the Minister. If any marriage formula has not been approved, the marriage
officer shall put the following question to the future married couple; “Do you,
A.B. declare, that as far as you know there is no lawful impediment to your
proposed marriage with C.D here present, and that you call all here present to
witness that you take C.D as your lawful wife (or husband)?” If both
parties respond in the affirmative, the marriage officer declares the marriage
solemnized in the following words; “I declare that A.B and C.D here present
have been lawfully married”.[29]
Section 31 of the Marriage Act contains, that a
marriage officer shall not be compelled to be a minister of religion or a
person holding a responsible position in a community or organization, to
solemnize a marriage which is not in conformity with the rites, tenets,
doctrines or disciplines of his religious denomination or organization.[30]
Consequences of a Civil Marriage
The major concerns for the repercussions of a
‘Civil Marriage’ for many Muslims living in
The consequences of a civil marriage immediately
come into operation by means of the Law, and cannot be excluded by the spouses.[31]
Since the commencement of the Matrimonial Act 88 of 1984 on the 1st
November, the spouses may opt either for marriage in community of property, out
of community of property with the accrual system, or out of community of
property and out of the accrual system.
The assets of the spouses in Marriage in Community
of Property are joint, and each spouse has right of disposal over the assets
with written consent from the other spouse. This system is regulated by
financial equality and certain assets may be excluded from the joint estate, example
testamentary. Customary marriages concluded on the 15th November
2000 and after, are subjected to community of property, unless excluded by an
ante - nuptial contract.[32]
Marriage out of Community of Property with the
Accrual system is that which the spouses jointly acquire in the marriage. The
assets prior to marriage may be included in this system by agreement. If
failure to mention any assets or the commencement value of the estate in the
ante - nuptial contract, the value of the estate of either of the spouses at
commencement of the Marriage is zero. Upon the dissolution of the marriage by
divorce or death, the net estate values are determined separately, and the
larger estate must then transfer half of the difference to the smaller estate.[33]
Marriage out of Community of Property out of the
accrual system, is contracted by means of an ante - nuptial, contract when the
community of property and profits and losses is excluded. The accrual system
must strictly be excluded, otherwise it applies. This system appears to be the
closest to the Islamic concept of marriage regarding the assets of the spouses.
In this system each party has full right of disposal over his / her own assets.
No financial equality exists in respect to any contribution the spouses have
made. This is ideal when both parties have a substantial estate or income[34]
and wishes to contract a further marriage under
the customary marriage act.
The systems discussed has a major impact not only upon the estate, but
also upon the Islamic rights of the spouses and the rights of the children,
which is in contravention of Islamic concept of marriage. This will be
explained later under the heading of divorce and custody.
Conclusion
Marriage under
the South African Law as well under the
A breach of contract occurs when either the husband or wife; commits an unchastely act with another person, mistreats their spouse, neglects their duties and responsibilities, or commits any act which destroys the sanctity of this sanctified union. This often results in temporary separation or even a complete dissolving of the marriage, which has a number of consequences, not only upon both spouses but also for the children. This will be explained later, under the heading of divorce and custody.
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Al -
Shāfi`ī. 1413 A.H. Al-
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Pietermaritzburg: Interpak Books.
Hahlo, HR. 1985. The South African Law of Husband and Wife. Kenwyn: Juta and Co, LTD. Fifth Edition.
Ibn Qayyim al – Jawzī. 1387 A.H. Said al – Khātir.
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Muhammad bin
Ismail. 1417 A.H. Sahih al – Bukhārī. Riyadh: Dār al – Salām.
Part 2: Polygamy
M.
Ihsaan Taliep
Introduction
With the advent
of Islam in seventh century
These important
considerations are of particular relevance to a modern society like
Such
developments have certainly facilitated the process of formulating draft
legislation for the recognition of Islamic marriages in
The
Classical Position on Polygamy
The position of the founding jurists in the
classical works of fiqh with regards to ta’addud
al -zawjāt (polygamy), is one of general consensus. The four fiqhī schools of thought among the Sunnis, in particular, hold, that it is permissible for a man to be married to up to four wives at the same time.[35] The key passage in the Qur’ān where polygamy is designated as permissible, may be rendered as follows:
And if you fear that you will not act justly towards the orphans, marry such women as seem good to you, two, three, four; but if you fear that you will not be equitable, then only one, or what your right hands own; so it is likelier that you will not be partial (or become destitute).[36]
In addition, the Prophet Muhammad (pbuh), on the authority of Abdullah bin `Umar, is reported to have said to Ghaylan bin Salamah when he embraced Islam and whilst having ten wives: ‘Choose only four from among them’.[37] Hadīth texts referring to similar instances abound. Further, it is established from the practice of the first three generations, that they joined between two, three or four wives in marriage at one time, but never exceeded that.
The
Historical-socio-cultural Milieu
The treatment of
polygamy by contemporary scholars is invariably predicated on a
contextualization of the socio-moral and cultural milieu that prevailed with
the advent of Islam. Pre-Islamic
These conditions are extrapolated from the aforementioned verse: ‘if you fear that you will not be able to do justice then (marry) only one’. The text contains a strict conditional reference which hinges on a mere fear of inability to maintain justice and equity between two or more wives. Importantly, the requirement of equality in the context of this verse is confined to the responsibility of material provisions such as food, clothing and shelter, etc. The intent here ought not to be conflated with that in verse 129 of the same chapter: ‘You are never able to be fair and just as between women, even if it is your ardent desire; therefore turn not away (from a woman) altogether so as to leave her as it were hanging (in the air)’.[38] The negation of the ability to maintain equality referred to here, is in relation to emotional attachment and sexual intercourse.
To this end, Aisha, the wife of the Prophet (pbuh), reported that he used to allocate equal time and provisions to his wives, and then prayed: “Oh Allāh herewith is my apportionment over which I exercise control, but do not hold me accountable for that which you control and I do not.”[39] The celebrated exegete of the classical era, Ibn Kathīr, cites this hadīth text to corroborate that the intention of the Lawgiver in the said verse, refers to the matters of the heart. He states, that it is impossible for a human being to observe equality between his spouses in every respect. For whilst he may succeed to maintain formal equality in division of time and maintenance, his feelings and emotions towards them will inevitably differ.[40] An implied tolerance of inequality, to a degree, can be clearly inferred from the second half of the same verse: ‘so therefore turn not away (from a woman) altogether so as to leave her as it were hanging in the air.’
Contemporary
Challenge to the Classical Position
In advancing her
case against the recognition of polygamy in the draft Muslim Marriages Bill in
Accordingly, she explains that from the first passage “the injunction to treat more than one wife ‘justly’ is clear”[42] and in the second the Qur’ān is explicit that “the implementation of this injunction is impossible, thereby nullifying the practice of polygamy.”[43] Furthermore, Amien asserts that contextually, the verses were revealed immediately after the Battle of Uhud which resulted in the orphaning of many children. “It therefore specifically relates to justice toward orphans. At that time it may have been a reasonable alternative to provide for the necessary protection and care for orphaned women. However this societal purpose no longer exists in our current context, thereby negating its recognition and implementation in the twenty first century.”[44] Whether the aforementioned challenge to the classical position on polygamy effectively alters anything, will now be evaluated.
A Critical
Evaluation
The nullification of polygamy based on a literal reading of the text in question as alleged is in fact, untenable. This is abundantly clear when verse [4:129] is read from its beginning to end. For some reason Amien’s quotation of the verse ends at “… even if it is your ardent desire”. She omits to include the latter part ‘therefore turn not away (from a woman) altogether (kullal mayl) so as to leave her as it were hanging in the air’. The prohibition rendering it unlawful to turn away from a woman, is accompanied by the qualifying clause ‘kullal mayl’ (altogether). When read in conjunction with the first sentence in the verse ‘You are never able to be fair and just between women…’ it provides the clarification, that an inevitable degree of inequality between wives at the emotional level is pardonable, as long as the ‘disadvantaged’ wife is not deprived of her rightful share of companionship and conjugal rights. The aforementioned hadīth of the Prophet (pbuh) further explains, that this inevitable measure of inequality pertains to matters of the heart and sexual intercourse. It may be noted that the assertion pertaining to the reading together of the two verses, on the one hand, and the prevailing context that lent some justification, under those circumstances, to polygamous unions on the other, are contradictory.
Further to the
contextual incongruence between the time of revelation and the present, it is
correct that the revelation of verse [4:3] has specific relation to justice
toward the orphans, the protection of whose interest serves as its main theme.
To negate the possible recurrence of this societal purpose in our current
context and thus rendering the recognition and implementation of polygamy a
nullity in the twenty first century is sweeping, but it also contains a
fundamental flaw in that it equates the ‘societal purpose’ with the effective
cause (`illah) for the permissibility of polygamy. Societal purposes
such as that mentioned here are normally considered when discussing the
objective (hikmah) of the law. The `illah for the permissibility
of polygamy in Islam is the consideration of society’s contextual reality and
what that reality dictates of wisdom and balance to be applied in dealing with
social challenges.[45]
This may in part explain why even the Catholic church in parts of
It should be noted also, as can be seen from the aforementioned discussion on verse [4:3] that the reference to polygamy is secondary. The primary consideration is the directive to guardians of orphans to marry other women, monogamous or polygamous, instead of the orphans if they feared they would act less than just. In this sense the reference to “two, three, or four,” I believe simply shows that polygamy was, and remains a recognised mode of marriage in Islam. The text of course also confirmed the limitation contained in the Prophetic hadīth that polygamy was now only allowed with up to four wives.
Notwithstanding the socio-economic factors surrounding the occasion of revelation, the most compelling considerations for Islam’s recognition of polygamy must be the moral imperative. The Islamic response to the pervasive manifestations of moral disintegration is the only voice of reason and consistency. The hypocrisy of those who vociferously oppose polygamy, despite statistics of infidelity, is glaring. Although, in reality Islam does not advocate nor elevate the status of polygamy, it merely recognizes it as a mode of marriage, but like all things permissible it may be sullied with the unlawful thus incurring sin. The preferred form of marriage to achieve the purposes and aims of marriage in Islam to forge familial harmony based on love and compassion is monogamy. For it in itself protects the individual from potential injustice between spouses.[46]
The South
African Human Rights Context
Marriages concluded in accordance with Muslim Rights are presently not recognized as being valid in terms of South African law. This is due to the fact that marriage in South African law is defined as “the legally recognized life-long voluntary union between one man and one woman to the exclusion of all other persons.”[47] In 1983 the Appellate Division (today called the Supreme Court of Appeal), in the case of Ismail v. Ismail[48] held that a ‘potentially polygamous’ marriage is equated with a de facto polygamous marriage. Polygamous unions between parties are void on the ground of public policy. Thus, Muslim marriages were deemed contra bonos mores and unenforceable as a contract.
In 1993 the
interim-Constitution[49]
was promulgated. It conferred on all South Africans basic human rights and
heralded a democratic dispensation installing
(a) This section does not prevent legislation recognizing
i. Marriages concluded under any tradition, or a system of religious, personal or family law; or
ii. Systems of personal law and family law under any tradition, or adhered to by persons professing a particular religion.
(b) Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.[51]
The first
opportunity to observe to what degree the relevant provisions in the new
Constitution would influence the attitude of the Courts with regards to Muslim
marriages, presented itself in the
The recognition expressed by the Courts in the above case as well as in two subsequent cases, viz. Amod v. Multilateral Motor Vehicle Accident Fund (Commission of Gender Equality Intervening)[54] and the most recent Daniels v Campbell NO and Others[55] applied to the contractual terms of a de facto monogamous marriage, only. A significant development pertaining to contractual terms between parties to a polygamous marriage, occurred in the Khan v. Khan case.[56] For the first time, our Courts recognized that a legal duty of support exists between parties to a polygamous marriage. It can therefore undoubtedly be said that the Courts endorse the view that public policy considerations have changed – a case in point is the formal recognition of polygamous customary marriages. The Court further stated that:
The argument that it is contra bonos mores to grant a Muslim wife, married in accordance with Islamic rites, maintenance where the marriage is not monogamous, can no longer hold water. It will be blatant discrimination to grant, in the one instance, a Muslim wife in a monogamous Muslim marriage a right to maintenance, but to deny a Muslim wife married in terms of the same Islamic rites (which are inherently polygamous) and who has the same faith and beliefs as the one in a monogamous marriage, a right to maintenance.[57]
However, it is important to note that the Courts have left open the question of formal recognition of Islamic marriages. This responsibility of recognition or non-recognition stands deferred to the legislature for promulgation.
Legislation for the Recognition of
Muslim Marriages
With the dawn of
a constitutional democracy in
The draft bill
incorporates provisions for the recognition and regulation of the scope of laws
that are normally categorized under the al - Ahwāl al - Shakhsiyyah,
or Muslim Personal Law under the
At present, however, there seems to be no reason why the legislature would expedite the passing of the draft bill, since South African Muslim society, inter se, has reached an impasse for lack of consensus to proceed with the draft piece of legislation on the basis, I believe, of what the lack of Constitutional muster may possibly entail of far-reaching changes to provisions in the current draft bill should it, eventually, be passed by the legislature. The stalemate, in large, is due to uncertainty among the informal Muslim judicial bodies represented by the `ulema (religious scholars), as to the outcomes of expected challenges to the constitutionality of various provisions in the draft bill, on the basis especially of gender equality. Notwithstanding, these bodies, along with various other organizations, have been engaging the current project committee of the South African Law Reform Commission, in formulating the draft bill via public participation forums, since inception.
The challenge
which looms over the future of the proposed bill, in the view of Motala, a
Constitutional Law expert, is two-dimensional. The first pertains to the
legislative process – there is no guarantee that after the draft bill has been
processed through the various tiers of scrutiny and debate in the legislature
that the final outcome will resemble the initial draft.[58]
As it is, the project committee has had a difficult task forging a synthesis
between the concerns of the `ulema, on the one hand and the feminist
lobby and the Commission for Gender Equality, on the other. Until now, the
latter parties have serious misgivings about the draft bill, hence the
sentiment that the committee favoured conservative interpretations of the
In this regard,
Motala further states that the
Motala correctly
points to a litany of case law which has incrementally been developed by the
constitutional court with regard to gender equality. Complaints of
discrimination on the basis of gender, because it is listed, are presumed
unfair. He is therefore of the view that it would be unwise for South African
Muslims to pursue with their current course of action, since the chances are
high that numerous provisions in the draft bill will be declared
unconstitutional. They would therefore effectively be appointing the courts as
the ultimate guardians of the
In contradistinction to this view, the project committee tasked with the harmonization of the Common law and the Indigenous Law, had some interesting points to make pertaining to polygamy in customary marriages and whether or not it is discriminatory, and if so, whether it is unfairly discriminatory:
Judging from the emerging constitutional jurisprudence on issues of culture, customary law and religion, the courts are not prepared to strike down a customary practice merely because it is controversial or is under attack from various interest groups. These recent judgments suggest that it is now unsafe to assume that a kind of hegemonic western orthodoxy will prevail over African customs which do not fit comfortably with the dominant cultural frame.
A
factor which is not insignificant in this debate, is the question of
appearances. Currently there is considerable controversy in
In an attempt to mitigate the potentially discriminatory effect of polygamy the committee along with their recommendation that customary marriages should remain potentially polygamous, proposed a compromise: “that the consent of the first wife of a potentially polygamous marriage be obtained before a husband is entitled to contract a subsequent union.”[64]
Conclusion
The Customary Marriages Project Committee, notwithstanding their persuasive arguments in support of polygamy, is of course forced to defer judgment to particularly the constitutional court. The accumulating case law which tend to consistently attach preponderance to considerations of equality when in tension with competing rights may yet prove to trump considerations of custom, religion or tradition, no matter how politically expedient the latter may be. Ultimately, compromises must be made for both rights so that one right is not subordinated to the other and both rights are kept in equilibrium with each other.
Perhaps polygamy in the Muslim marriages draft bill would gain further constitutional muster through the provision of a further suspensive condition to be attached to the marriage contract. The jurisprudential schools of thought generally agree that the wife may stipulate in the marriage contract that should her husband marry a second wife without her consent, the right to divorce accrues to her.[65] This, in addition to leveraging the potential of the deferred dowry payable upon divorce or demise of the husband, will certainly go a long way in leveling the positions of power between the spouses. These kinds of provisions, in turn, may ensure that the proportion of discrimination to unfair discrimination as it applies constitutionally to the question of polygamy is balanced. The Prophet (pbuh) said:
The conditions that are most deserving of being fulfilled are the ones through which the private parts are made lawful to you.[66]
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Part 3- Divorce
Faeeza Vaid
Introduction
In Islam, marriage is viewed as a civil contract; yet the rights and responsibilities consequent upon it are of such importance to the welfare of humanity, that a high degree of sanctity is attached to it. However, in spite of the sanctity of the character of the marriage tie, Islām recognises divorce in cases when marital relations are poisoned to a degree, which makes a peaceful home life impossible. But Islam does not believe in unlimited opportunities for divorce on frivolous and flimsy grounds, as it would destroy the stability of family life. Therefore, while allowing divorce even on genuine grounds, great care has been taken to introduce procedural checks designed to limit their use and protect potential divorcees.
I begin this
section by broadly defining the Sharī’ah
rules pertaining to divorce, and the divinely indicated procedure of divorce.
Juristically derived methods of divorce, mainly from the Hanafī school of thought, are then explained. Thereafter, I
include examples of their implementation in a few Muslim countries to
illustrate their varying utilisation. Thereafter, I turn to
Divorce in Sharī’ah
The Arabic word for divorce is talāq which means “freeing or undoing the knot”.[67] The Prophet Muhammed (pbuh) stated that “the most detestable of lawful things before Allah is talāq, and encouraged disputes to be resolved between the couple.”[68] However, the Qur’ān imposes no obligation on a married couple to remain married if their differences are irreconcilable.[69] Instead, it prescribes the manner in which divorce should be carried out.[70]
Procedure of
Divorce
According to the wisdom of the glorious Qur’ān, divorce must follow a procedure premised on the value of a marriage that should not be discarded hastily. Firstly, a married couple having marital problems to the extent they fear separation, must use arbitrators to help solve disputes.[71] By the end of this period, a decision must be reached whether to remain married equitably or divorce equitably.[72] If divorce is decided upon, the women shall observe `iddat (waiting period) of approximately three months,[73] or until the end of her pregnancy.[74]
Husband’s Rights to Divorce
In accordance with the Qur’ān, the Sunnah, and the universal Ijmā’ (consensus of the `ulamā’), a number of methods of divorce have been formulated from the above revelation. The most widely used method of divorce is talāq. The right of pronouncing talāq belongs exclusively to the husband. Generally amongst the schools of thought, talāq is considered as either talāq sunnī or talāq bid’ī. The Hanafis however, consider three types of divorce: talāq ahsan, talāq hasan and talāq bida’a.[75]
Talaq ahsan; or the most laudable divorce, occurs where the husband repudiates his wife by making one pronouncement between tuhr (two menstruations) and therefore, while she is in a state of tuhr (purity), and sexual intercourse has not taken place, thereby allowing the woman to observe her `iddah (waiting period of three menstrual cycles).
The wisdom of Allah in prescribing this waiting period, allows the issuing of divorce to be revoked during this period, as well as gives sufficient time to determine whether the wife is pregnant, and thereby the paternity of the child, important for consequences such as inheritance.
The divorce in
this instance may only be revoked within a maximum of three menstrual cycles.
Thereafter, one talāq is counted
as having taken place, with the possibility of renewing the marriage, by simply
reestablishing the marriage contract through nikāh. This process may take place twice more, but on
pronouncement of the third talāq,
the couple may only remarry through the process of hilālah.
Talāq hasan; the laudable divorce, occurs where a husband repudiates an enjoyed wife in three single statements of divorce, over three periods of tuhūr in accordance with the Qur’ān.[76] The divorce may only be revoked within a maximum of two menstrual cycles. Thereafter, talāq is final, and the couple may only remarry through the process of hilālah.
Talāq bid’a; or irregular divorce, is where a husband repudiates his wife by three divorces at once. According to the majority of the jurists, the talāq holds good, but it is against the spirit of the Sharī’ah, and therefore, the man who follows this course in divorce, is an offender in the eye of the Islamic law. Again, the couple may only remarry through the process of hilālah.
Omar bin Khattab when faced with this predicament, held that the expression of three talāqs at one time, would only be counted as one talāq.[77] Ibn Taymiyyah, Ibn Qayyim and the like are all in agreement with this ruling. It is interesting to note that the Shī’ah school of thought is strictest in their approach in this regard, and do not consider this method of divorce valid at all.
Talāq in Muslim Countries
It is this method of divorce that human rights groups have the most problems with, based on the argument that the unequal allowance of applying for divorce has potentially severe consequences in unjust societies, where women are particularly disadvantaged, despite Qur’anic ethical values.
In efforts to
rectify this, Muslim states have sought to regulate the procedure for talāq, with varying degrees of
success. A positive example occurs in
However, despite
the requirement of notification and registration of talāq in
Thankfully, on appeal the verdict was quashed on the basis that registration was not required for divorce to be valid, but the court did re-emphasise the value of registering divorce.[79] Although this proved beneficial in this case and provided a just result, it can be argued that the ruling undermined the obligatory nature of registration, which could have far wider implications.
It is clear that the social realities of Muslim women often differ from well-intentioned legislation, for the mindset and context of a society generally have far greater power than statutes.
Wife’s Right to Divorce
While a wife
does not have the right to a unilateral divorce such as talāq, women generally utilise three main types of divorce
available to her; tafwīd talāq,
khul’, and fasakh.
Tafwīd talāq, is the delegation of talāq by a husband to his wife. This power to pronounce talāq may be delegated to the wife or a third party either at the time of, or subsequent to the marriage. Furthermore, such delegation may be made either conditionally, dependant upon the occurrence of a specified event, or unconditionally.
This method of talāq emphasises the importance of the marriage contract as key to greater equity and justice afforded to women. For instance, conditional tafwīd talāq is based on the conditions found in the marriage contract. Conditions must be stipulated, and if broken, would allow the wife to go to court to apply for divorce.
Unconditional tafwīd talāq provides greater equity and justice to women, by granting women the same facility available to men to divorce, without removing the consequences of divorce, such as maintenance.
Tafwīd talāq in
Muslim Countries
Tafwīd talāq is generally not
recognised in those Muslim countries, that do not recognise talāq made by the husband outside
of court. These countries include
In
* * *
Secondly, the method of khul’ (literally meaning ‘laying off’) is derived from the Qur’ān[82] and is used by a wife to divorce her husband, by paying or consenting to pay compensation to her husband in exchange for a divorce. Such compensation could take the form of releasing the husband’s obligation to pay mahr in this situation. Alternatively, anything of value may be used, as supported by the Sunnah.[83]
It is generally accepted that the process of khul’ must be adjudicated, usually by an Imam or judge, but scholars vary in their viewpoints of which conditions should be met in order to grant divorce.[84] While I am not referring to a fault-based list of conditions which the wife must prove, as in fasakh, the wife does still need to provide reasons for wanting the divorce. Therefore, the procedure is supposed to be less cumbersome and time-consuming.
However, the
requirement of compensation, generally isolates women with low-income
backgrounds, as they would simply not be able to afford divorce in this method.
One of the key controversies here, is in framing whether the husband himself is required to ‘lay off’ the wife explicitly, or whether the wife’s request to ‘lay off’ her husband may be executed by the judge.
Khul’ in Muslim Countries
In relation to
the whether the explicit permission of the husband is required,
The recent
positive law reform in
During the first month of the inclusion of the khul’ provision at least 3000 cases were lodged by Egyptian women. However, the drawback of having to pay compensation, as well as forfeit the payment of maintenance, has meant that only those women independently financially stable would opt for this method. It is also in the interest of husbands to pay large mahr amounts, in order to prevent this method being possible.
* * *
Thirdly, fasakh (judicial dissolution) is the wife’s permissibility to approach a judiciary, to grant an order dissolving the marriage. Application may be made based on a breach of certain conditions of the marriage contract. These conditions vary depending on the madhab (school of law) practiced by the couple.[86] Generally, it is accepted that the Hanafī school affords narrow allowances of conditions that would qualify the application of divorce, whereas the Mālikī school is said to be more expansive comparatively.
Fasakh in Muslim Countries
The conditions needed for fasakh in divorce legislation vary somewhat from country to country, and also have different reconciliation methods in place. In some cases, Sharī’ah courts have been willing to ‘borrow’ Islamic rulings for other schools of thought, in the interest of greater equity and justice.
For example, in
There is no provision in the Hanafī code of Muslim law enabling a married Muslim woman to obtain a decree from the courts dissolving her marriage in the case the husband neglects to maintain her, makes her life miserable by deserting or persistently maltreating her or certain other circumstances…The Hanafī jurists however have clearly laid down that in cases in which application of Hanifī law causes hardship, it is permissible to apply the provisions of the Mālikī, Shāfi`ī or Hanbalī law. Acting on this principle the theologians have issued Fatāwā (religious rulings), to the effect that in cases enumerated in clause 3, part A of this bill, a married Muslim woman may obtain a decree dissolving her marriage.[87]
Thus, while still fault-based, the list of conditions were more expansive than they originally were, and now include; desertion by the husband for more than four years, husband’s failure to pay maintenance for more than two continuous years, husband’s having been sentenced to imprisonment for seven years or more, husband’s impotence at time of marriage (and continuing to be so), husband’s insanity for a period of two years or his suffering from leprosy or a virulent venereal disease, husband’s cruel treatment of wife (habitual or cruel conduct), and any other grounds recognized as valid under Muslim Law.[88]
* * *
Additionally, talāq tafrīq (spouse’s failure to fulfill marital responsibilities)[89] and talāq ta’līq (a suspended or conditional talāq) may be utilised in order to invoke a divorce, although these methods are generally more tedious to prove.
Mutual Rights
Mubārat (mutual consent) occurs when the husband and wife, by mutual consent, obtain release from their marriage contract. The offer of separation may emanate either from the wife or from the husband and once accepted terminates the marriage.[90]
The consequences of this method of divorce are what are important, for it allows for the negotiation of settlement, property and other claims, by the husband and wife. For this to be equitable and just it assumes that both parties negotiate on an equal footing.
Mubārat in Muslim
Countries
On the one hand,
in
On the other
hand,
Muslim Divorces in
Prior to 1994, Muslim marriages were considered “potentially polygamous” and therefore not recognized in the South African constitution.[93] Thereby, Muslim divorces were not considered valid, depriving Muslims of arbitration through the courts.
In the divorce case of Ismail v Ismail[94] it was once again found that Muslim marriages were contrary to ‘accepted custom and usages, which are regarded as morally binding upon all members of our society.’ Therefore, due to marriages not being seen as valid, a divorce could not be legitimate, and it was usually the wife, who was further disadvantaged, by not being able to claim redress from the husband’s separate estate.
Muslim Divorces in
The MPL Bill
In the wake of
‘the new
The MPLB eventually created, produced
a mixed feeling despite the attempt at being as pluralistic of opinion as
possible. On the one hand, many argued that the South African Constitution
should be willing to co-exist alongside a MPL system, with such a system also
being exempt from certain clauses of the Bill of Rights via its Limitation of Rights. For example,
article 36.1 of The Bill of Rights states:
the rights in the Bill of
Rights may be limited only in terms of law or general application to the extent
that the limitation is reasonable and justifiable inn an open and democratic
society based on human dignity, equality and freedom.
On the other
hand, Waheeda Amien, felt that the more traditional concerns of the `ulamā’
were prioritised, and women’s rights were yet again given second place.[96]
She argued that the Bill of Rights provided an avenue to rethink Muslim
Personal Law and its own conception of rights, and improve injustices blatantly
entrenched in its practice. This is based on the idea that while the South
African Constitution now guarantees certain fundamental rights, for instance,
the right to equality, (Section 9 Act No. 108 of 1996) such rights do not go
against fundamental rights found within the Qur’an and Sunnah.
The MPLB proposal regarding divorce may be found in Appendix 1, and includes the methods of Talāq, Khul’ and Fasakh as modes of obtaining divorce. This is problematic as far as the South African Constitution is concerned for two primary values found in the constitution are the right to equality and the freedom of religion. It is certain that the right to equality, based on non-discrimination of gender, finds itself ranked higher than the right not to be discriminated on grounds of religion. It is explicitly stated in section 15(3)(b) of the Constitution that legislation recognising various alternate marriages and systems of law must be consistent with the rights found in section 15(3) and other fundamental provisions of the Constitution. It should be noted that the South African Bill of Rights also contains a limitation clause which states that a value or right may be limited if it is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”. (S. 36(1) of the 1996 Constitution)
Therefore, a
divorce procedure which does not provide equal avenues for both men and women,
may be seen to contravene the right to equality, especially seeing as the
discrimination is based on gender. Therefore, to rectify this, a South African
legislator would be compelled to amend this discrepancy, and allow both men and
women to utilise the same methods of divorce. This, for many Muslims as we have
seen, is unacceptable, based on their interpretations of the verses on divorce
found in the Qur’ān.
The MPLB also sets out to utilise section 4 of the South African Divorce Act 70 of 1979 which stipulates the grounds on which parties may obtain a divorce (discussed below).[97] Using this as a uniform bases, it was suggested that specific Islamic conditions would be able to be added to the bill, but ultimately the mode of attaining divorce for both husband and wife would be regulated through the courts. For example, marriage officers would recognise a Talāq in the presence of the parties and record any pronouncements.
The MPLB remains in proposal form, having been submitted to the Minister of Justice. Therefore, it has been left in the hands of the Judges of our courts to provide redress, until such time as the Muslim Personal Law bill is implemented or rejected.
Divorce under South African Civil Law
Dissolution of a civil marriage by divorce is based on 3 no-fault grounds for divorce, which were introduced by the Divorce Act 1979.[98] These are as follows:
1. irretrievable breakdown of the marriage (section 4);
2. mental illness of a party to the marriage (section 5);
3. continuous unconsciousness of a party to the marriage (section 3).
For our purposes, it is only the irretrievable breakdown of the marriage which will be discussed. According to section 4(1), the ‘court may only grant a decree of divorce on the ground of the irretrievable breakdown of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.’[99]
Therefore, two requirements exist. Firstly, the marriage relationship must no longer be normal, and secondly, there must be no prospect of the restoration of a normal marriage relationship between the spouses. The legal definition of “normal marital relationship” should be sought in the concept of consortium omnis vitae. This occurs where either spouse or both of them behave in such a way that the consortium omnis vitae is terminated or seriously disrupted, it can be said that a normal marriage relationship no longer exists between the spouses.
The guidelines for the irretrievable breakdown of a marriage are found in section 4(1) of the Act, and are merely examples of instances where the probability is high that a normal marriage relationship no longer exists and that there is no reasonable prospect for the restoration of a normal marriage relationship. However, these guidelines are neither exhaustive nor conclusive.
Subsection (2)(a) states:
parties have not lived together as husband and wife for a continuous period of at least one year immediately prior to the date of the institution of the divorce action.
This shows that the legislator requires an unbroken period of at least one year, and it is clear that if the period was interrupted by periods of resumed cohabitation, the plaintiff would have to present more evidence to the court than the mere fact that they have lived apart for a year.
When compared to the provisions of Sharī’ah law, it is clear that Sharī’ah law provides a more attainable test in applying for divorce. A period of one year, for many people would simply be too long, for those wanting to remarry, or for a husband to may maintenance solely for his previous wife. Also, a Muslim couple is encouraged to reconcile a marriage. Therefore, even if a couple separates, and then returns to one another, and again separates, and again returns to one another in a one year period, they may still divorce.
Subsection (2) (b) states:
The defendant has committed adultery and the plaintiff finds it irreconcilable with a continued marriage relationship.
The test to determine whether the plaintiff considers the defendant’s adultery irreconcilable with the continuation of the marriage is clearly subjective. If the plaintiff alleges that he or she cannot continue with the marriage, there is no way in which this allegation can be refuted. There is support for the contention that it is not necessary to convince the court on a balance of probabilities that adultery was committed. The plaintiff should however place some evidence of the adultery before the court. A mere allegation that the defendant committed adultery would not be sufficient to ensure the success of the divorce action.
Again, in
comparison to
Therefore, the allegation of adultery may thus be considered under the Islamic principle of Li’ān, which places a strict test on both parties to speak the truth about the alleged incident, or accept the punishment of Allāh. If the allegation is found to be true, a party may, under this category, apply for divorce.
Subsection (2) (c) states:
A court has declared the defendant a habitual criminal and the defendant is undergoing imprisonment as a result of that sentence.
If the defendant has not been declared a habitual criminal, the plaintiff would have to adduce evidence other than the mere fact of the defendant’s imprisonment to prove that the marriage has broken down irretrievably.
While
criminality is not an explicit reason in the
Subsection (3) states:
If it appears to the court that there is a reasonable possibility that the parties may become reconciled through marriage counsel, treatment or reflection, the court may postpone the proceedings in order that the parties may attempt reconciliation.
The
In the South African Divorce Act of 1979, if the above guidelines are not fulfilled, a plaintiff may sue for divorce after a year’s separation, in terms of section 4(2).
Conclusion
This essay firstly outlined the sources
which provide divine legitimisation and instruction for the procedure of
divorce. Thereafter, each method derived from the Qur’ān and Sunnah by jurists is described, illustrating the different conditions needed
in obtaining divorce.
Examples are then provided from Muslim
countries who implement divorce through various legislation and legal systems.
From these examples it is clear, that there have been significant progressive
attempts at applying the law in ways which are more accommodating to the rights
afforded to Muslim women. However, in many circumstances, these are piece-meal
efforts, which often face the stumbling blocks of discriminatory social
practices. At the same time, there is a lot which is to be learned from these
examples.
This is
where the proposed MPLB in
I believe that the example of countries such as
By comparing the South African Divorce Act 1979 to the Islamic law principles of divorce, we do not see major disparate conditions for divorce. If anything, Islamic law, even in its classical positioning, provides far greater avenues for both men and women in obtaining divorce. Both systems encourage the process of reconciliation, ultimately seeking to protect the sanctity of a family.
In conclusion, the Muslims of South Africa still have the power to implement the MPLB as part of the South African Constitution. The problem is not necessarily about the law itself, but about the failure as an Ummah to remain united. We need to tackle the dividing issues head on, and ultimately strive for the ethical values found in the Qur’an and Sunnah to be upheld, whichever shape this may eventually take.
As stated by J.D. van der Vyver, a South African judge:
I
often wonder whether we do not rest our hopes too much upon constitutions, upon
laws and upon courts. These are false hopes; believe me, these are false hopes.
Appendix 1
The
following clause on the dissolution of Islamic marriages appeared in the draft
Bill
proposed
in Discussion Paper 101:
Dissolution
of Islamic marriages
9.
(1) Notwithstanding
the provisions of section 3(a) of the Divorce Act,1979, (Act No. 70 of 1979),
or anything to the contrary contained in any law or the common law, an Islamic
marriage may be dissolved on any ground permitted by Islamic Law. The
provisions of this section shall also apply, with the changes required by the
context, to an existing civil marriage insofar as the parties thereto have in
the prescribed manner elected to cause the provisions of this Act to apply to
the consequences of their marriage.
(2)
In the case of Talāq the following shall apply:
(a)
The husband shall be obliged to cause an irrevocable Talāq to be registered immediately, but in any event, by no
later than seven days after its pronouncement, with a marriage officer, in the
presence of the wife or her duly authorised representative and two competent
witnesses.
(b) If the presence of the wife or her duly
authorised representative cannot be secured for any reason, then the marriage
officer shall register the irrevocable Talāq only in the event that
the husband satisfies the marriage officer that due notice in the prescribed
form of the intended registration was served upon her by the sheriff or by
substituted service.
(c)
The provisions of paragraphs (a) and (b) shall apply, with the changes required
by the context, where the husband has delegated to the wife the right of
pronouncing a Talāq, and the wife has pronounced an irrevocable Talāq
(Tafwīd al- Talāq).
(d)
Any spouse who knowingly and willfully fails to register the irrevocable Talāq
in accordance with this subsection shall be guilty of an offence and liable
on conviction to a fine not exceeding R50 000.
(e)
If a spouse disputes the validity of the irrevocable Talāq,
according to Islamic Law, the marriage officer shall not register the same,
until the dispute is resolved, if the marriage officer is of the opinion that
the dispute relating to the validity of the irrevocable Talāq is
not frivolous or vexatious and has otherwise been fairly raised.
(f) A
spouse shall, within fourteen days, as from the date of the registration of the
irrevocable Talāq institute legal proceedings in a competent court
for a decree confirming the dissolution of the marriage by way of Talāq.
The action, so instituted, shall be subject to the procedures prescribed from
time to time by the applicable rules of court. This does not preclude a spouse
from seeking the following relief -
(i)
an application pendente lite for an interdict or for the interim custody
of, or access to, a minor child of the marriage concerned or for the payment of
maintenance; or
(ii)
an application for a contribution towards the costs of such action or to
institute such action, or make such application, in forma pauperis, or
for the substituted service of process in, or the edictal citation of a party
to, such action or such application.
(g)
An irrevocable Talāq taking effect as such prior to the
commencement of this Act shall not be required to be registered in terms of the
provisions of this Act.
(3) A
court must grant a decree of divorce in the form of a Faskh on any
ground which is recognised as valid for the dissolution of marriages under
Islamic Law, including the grounds specified in the definition of Faskh in
section 1. The wife shall institute action for a decree of divorce in the form
of Faskh in a competent court, and the procedure applicable thereto shall
be the procedure prescribed from time to time by rules of court, including
appropriate relief pendente lite, referred to in subsection (2)(f). The
granting of a Faskh by a court shall have the effect of an irrevocable Talāq.
(4)
The spouses who have effected a Khul’a shall personally and jointly
appear before a marriage officer and cause same to be registered in the
presence of two competent witnesses. The marriage officer shall register the Khul’a
as one irrevocable Talāq, in which event the provisions of
subsection (2)(f) will apply with the changes required by the context.
(5) In the event of a dispute between the
spouses with regard to the amount of compensation in the case of Khul’a,
the court may fix such amount as it deems just and equitable having regard to
all relevant factors.
(6)
The Mediation in Certain Divorce Matters Act, 1987 (Act No. 24 of 1987) and
sections 6(1) and (2) of the Divorce Act, 1979 (Act No. 70 of 1979), relating
to safeguarding the welfare of any minor or dependent child of the marriage
concerned, apply to the dissolution of an Islamic marriage under this Act.
(7) A
court granting or confirming a decree for the dissolution of an Islamic
marriage -
(a)
has the powers contemplated in sections 7(1), 7(7) and 7(8) of the Divorce Act,
1979, and section 24(1) of the Matrimonial Property Act, 1984 (Act No. 88 of
1984);
(b)
may, if it deems just and equitable, on application by one of the parties to
the marriage, and in the absence of any agreement between them regarding the
division of their assets, order that such assets be divided equitably between
the parties, where-
(i) a
party has in fact assisted, or has otherwise rendered services, in the
operation or conduct of the family business or businesses during the
subsistence of the marriage; or
(ii)
the parties have contributed, during the subsistence of the marriage, to the
maintenance or increase of the estate of each other, or any one of them, to the
extent that it is not practically feasible or otherwise possible to accurately
quantify the separate contributions of each party.
(c)
must, in the case of a husband who is a spouse in more than one Islamic
marriage, take into consideration all relevant factors including the sequence
of the marriages, any contract, agreement or order made in terms of section
8(3) and (7).
(d)
may order that any person who in the court's opinion has a sufficient Interest
in the matter be joined in the proceedings;
(e)
may make an order with regard to the custody or guardianship of, or access to,
any minor child of the marriage, having regard to the factors specified in
section 11; and
(f)
must, when making an order for the payment of maintenance, take into account
all relevant factors.
Appendix 2
Section
4 of the Divorce Act 70 of 1979 provides:
Irretrievable
Breakdown of Marriage as Ground of Divorce
(1) A
court may grant a decree of divorce on the ground of the irretrievable
breakdown of a marriage if it is satisfied that the marriage relationship
between the parties to the marriage has reached such a state of disintegration
that there is no reasonable prospect of the restoration of a normal marriage
relationship between them.
(2)
Subject to the provisions of sub-section (1), and without excluding any facts
or circumstances which may be indicative of the irretrievable breakdown of a
marriage, the court may accept evidence -
(a)
that the parties have not lived together as husband and wife for a continuous
period of at least one year immediately prior to the date of the institution of
the divorce action;
(b)
that the defendant has committed adultery and that the plaintiff finds it
irreconcilable with a continued marriage relationship; or
(c)
that the defendant has in terms of a sentence of a court been declared an
habitual criminal and is undergoing imprisonment as a result of such sentence,
as proof of the irretrievable breakdown of a marriage.
(3) If it
appears to the court that there is a reasonable possibility that the parties
may become reconciled through marriage counsel, treatment or reflection, the
court may postpone the proceedings in order that the parties may attempt a
reconciliation.
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Part 4: Custody
Sedick Samodien
Introduction
In Islām,
custody is referred to as hadānah. In the
Creation of a
favourable environment for the care and custody of minor children, is an
important aspect of the right to welfare in Islam. Hadānah has to
do with the upbringing of a person who cannot fend for himself/herself due to
his/her non-discerning nature, such as a saghīr (minor) or majnūn
(mentally deficient). Hadānah can also be described as:
(i) a relationship where a minor is maintained and cared for, or,
(ii) the legal authority that a person has over a minor.
The Islamic Law Position
In most
occasions, the issue of custody arises during or after the irretrievable
breakdown of the marriage. The parties can put in a contract what should happen
to a minor child if the marriage breaks down. However, the
In terms of the
The first person who therefore gets the right of hadānah is the mother, based on her natural inclination, relationship and position of affection towards a child during the early years. Evidence of this can be found in the hadīth (saying of the Prophet Muhammad (peace and blessings be upon him)) narrated by Amr bin Shuaib[102]:
A Persian woman was married to an Arab who divorced her. They had an infant son and the husband wanted to take the child under his care. She consulted the Prophet Muhammad (peace and blessings be upon him) and said: “This is my son. I protected him and my house was his protection. His father divorced me and now wants to take my son away”. The Prophet said “you have more right over him, provided you do not remarry”.[103]
The Khalīfah (leader) - Abu Bakr (peace be upon him) had to decide on a similar issue: `Umar, the father of Asim, a minor boy, wanted to take custody of his son. Abū Bakr (peace be upon him) refused this on the basis that “the minor child is used to the mother’s smell and her scent, and she can look better after him during the tender years”. Abū Bakr (peace be upon him) decreed that Asim should live with his mother until the age of 7.
This hadīth indicates that custody resides with the mother until certain ages, and are ‘in the best interests’ of the minor, as the mother is more affectionate and has a wider capacity to cope with growing children during their early years, than the father. This verdict remained unaltered as a guideline on any matter of this nature, during the period of all the companions.
The South African (SA) Law
Unlike the
(a) on the application of a parent of a minor in which an order for divorce is granted or
(b) on the application of either parent of a minor whose parents are living apart, if it is proved ‘to be in the best interests of the child’, grant to either parent the custody of the minor.
Firstly, the
Statute covers not only divorce, but also where the parents are separated.
Secondly, the Statute also implies that the minor is the child of both parents.
Lastly, the courts in
At this stage it is important to mention that custody is also covered in SA law under section 6(3) of the Divorce Act[106], where it is stated that “the court may award custody of the minor child/ren to one of the parents if it is shown that it is ‘in the child’s best interests’ to do so”.
While the
The SA Law is therefore less clear regarding custody. A subjective procedure is followed before custody is awarded to a parent. This subjective (and partly objective) procedure has given rise to wrongful custody situations in SA.
The Father and the Woman (Hadīnah)-
Who Has Custody of a Minor Child?
Even though the
custody of the minor child/ren may reside with the mother in terms of the
In SA law, if the court awards the custody of the minor child/ren to one parent, it means that the children will reside with this parent and that this parent will control the children’s daily lives. However, it does not mean that the other parent loses parental status. The other parent still has a right of reasonable access to the children.
In the event of the death of the father, his executor becomes their legal guardian. If the mother is disqualified for whatever reason, the custody of the male and female children will be given to the following female relatives in the order of priority; mothers mother, father’s mother, mother’s grand mother, father’s grand mother, full sister, uterine sister, daughter of full sister, daughter of uterine sister, full maternal aunt, uterine maternal aunt, full paternal aunt.
Where a mother or female relatives do not exist, the guardianship will devolve on the male relations in the following order; father, nearest paternal grand-father, full brother, any other paternal relative.
In the absence of legal guardians, the Qādī (judge) or the court will appoint a guardian to whom it will grant custody of the minor.[109] The mother is, of all persons, the best entitled to the custody of her infant child during marriage and after separation from her husband, unless she be an apostate (riddah), or wicked, or unworthy of being trusted.[110] This indicates that there are instances upon which the woman can be denied custody of a minor child.
Conditions of a Hadinah
i. She must
be `āqilah (sane mental capacity) mentally.
ii. She must
have the physical ability to look after the minor, as the protection of the
minor is part of her duties.
If she is not physically capable, she cannot assume this responsibility. All the fuqahā’ (Isamic Jurists) agree to these two shart (conditions).
iii. She must
be a Muslim.
Imām Shāfi`ī and Imām Hanbal are of the view that a kāfir (non-believer) has no right over a Muslim child and should not be allowed jurisdiction over their affairs. Important to the development of the child, is to educate him/her about the religion of Islam. These religious beliefs can best be imparted to the child by a Muslim. Imām Abū Hanifa, Imām Mālik and Abū Thawrī, view this requirement as a right over the minor child.
A story narrated by Abū Dawūd confirms this as follows: Rafī bin Sinān, a man who converted to Islām had a wife who did not convert to Islām. The Prophet Muhammad (peace and blessings be upon him) had to deliberate on the custody of the child and asked the child where he wanted to go. The child replied that he wanted to go to his mother. The Prophet Muhammad (peace and blessings be upon him) asked Allāh (God almighty) to guide the child to the Muslim faith. It was resolved, that although a mother is inclined to her own child because mothers are merciful to their minor children, the interest of the child is most important and to be brought up as a Muslim is in the primary interest of the child.
Ibn Hazm however, is of the opinion that Umm Kāfirah (a non-believing mother) can have hadīnah of the minor child from birth to aged 1-2 years. This is to attend to the essential requirements of the child during the vulnerable first two years. However, the Qur’ān (The revelation of God Almighty) states “and never will Allah allow a non-believer to be the overseer and triumph over a believer”.[111]
iv. The woman
must be a free person (not owned by masters)
v. According
to some of the fuqahā’ (Islamic jurists) the woman must be
unmarried.
If she remarries she loses her hadīnah. Ibn Hazm differs if the mother is given the hadīnah whether she is a divorcee, remarries or whether she stays single.
Imām Ahmad Hanbal is of the opinion that if the girl is a minor, then the mother has the right to custody until she becomes mukallaf (age of puberty).
vi. When the
mother remarries: If a woman remarries, her rights to hadīnah lapses.
An example of this is where the Prophet Muhammad (peace and blessings be upon him) deliberated on the position of a Persian woman who was married to an Arab and wanted to take the child under her care. The Prophet said “you have more right over him provided you do not remarry”.[112]
Ibn Hazm is of the view that the hadīnah has the right to look after her child – whether she is single, divorced or remarried. However, any woman whose right to hadīnah is annulled by marrying a stranger recovers the right by the dissolution of the marriage.
vii. If the
mother refuses hadīnah.
“It is to be observed that if the mother refuse to keep the child, there is no constrain upon her, as a variety of causes may operate to make her incapable of the charge”.[113]
viii. When
the mother dies then the child goes to the father.
In SA Law
generally, the custody of young children and daughters of whatever age are
awarded to the mother, except where the mother is a less responsible parent
than the father.[114] An investigation is usually lodged in SA to
assess whether the parent is suitably responsible to be awarded custody. An
enquiry can be instituted via the Family Advocate in terms of the Mediation in
Certain Divorce Matters Act[115]
in an order regarding custody. The rule that applied in Common Law was that the
custody of minor children should be awarded to the “innocent” parent at the
time of the divorce, thereby punishing the “guilty” parent. SA Law also has
conditions for the awarding of custody to a parent, but the conditions are less
prescriptive than in the
The length of Hadanah
The length of hadānah
with respect to the male child resides with the mother, grandmother or so forth
until he becomes independent of it himself i.e. capable of eating, drinking and
performing other natural functions without assistance. After this, the charge
devolves on the father or next paternal relation. In the case of a boy the
indicative age is 7 years, as outlined above.
The hadānah in the case
of a girl pertains to the mother, grandmother and so forth, until the first appearance
of the menstrual discharge (until the age of puberty) and after that, the
charge of her property belongs to the father. The reason for this is to instill
proper conduct in her. There is however a substantial difference amongst fuqahā’
(jurists) regarding the aforementioned positions:
Abū Hanīfah is of the view that hadānah starts from birth till 7 years or 9 years for the male minor child and from birth till 9 years or 11 years for the female minor child.
Imām Shāfi`ī is of the opinion that hadānah is from birth till 7 years for both male and female minors. At the age of 7 years the minor child is to choose with which parent to live on condition the child is sane.
Imām Ahmad is of the view that the male child remains with the mother from birth till 7yrs. After that, a minor child chooses with which parent to live, but if it is a female minor and she reaches 7yrs, then her father has more right to her than her mother.
Ibn Hazm’s opinion is that hadānah is from birth to puberty for both males and females – when there are certain physical signs on the child’s body.
The Mālikī opinion is that boys remain in hadānah until they become mukallaf (reach an age of puberty) and the female minor child stays with the mother until she marries and leaves home to live with her husband.
Location of the Hadānah
In SA Law the court may order the Custodian parent not to remove the child/ren from its area of Jurisdiction.[116]
Likewise in
terms of the
In
(i) if the woman wishes to move her child to another location then she must be a native of the area to which they will move
(ii) the marriage contract must have been executed there. This however applies if the place to which she intends to relocate is distant. If it be so near that the father may go and see / visit the child and return the same night, then there would be no issue with the removal of the child to another place.
Mutual co-operation is important in Islām and an amicable decision regarding custody in SA Law can also only be reached, if there is mutual co-operation between the parties. This mutual co-operation will be “in the best interests of the child”.
The Qur’ān (The revelation of God Almighty) also states “truly the believers are brethren, so help the brethren to live in peace with one another”.[118]
It is clear that
Muslim minorities can ensure alignment with the
I conclude with
the words of my lecturer Prof M.H. Kamali that “the larger challenge facing
many Muslin countries at the dawn of the twenty first century, is one of
government that is committed to the advancement of the basic rights and
liberties of its citizens. It is a question mainly of democracy that brings
peoples rights and welfare to the forefront of the agenda of representative
governments”.[119] SA is a young democracy, striving to ensure
the freedom and liberties of all its citizens. Although we are a Muslim
minority in SA, our display of firmness of faith and an adherence to the law
will contribute to the successful application of
Baillie N.B.E – Digest of Moohummadan Law,
Cronje, DSP and Heaton, J. 2004. South African Family Law.
Pietermaritzburg: Interpak Books.
Doi A.R 1984
Shari’ah – The Islamic Law,
Hahlo H.R., The SA Law of Husband and
Sallie A.H.,
2001, Maintenance and Child-Care :
According to Islamic Law,
Kamali M H – Sept 2006 Rights to Education, Work, and Welfare in Islam.
GENERAL
CONCLUSION
The spouses enjoy varied Islamic rights and the rights of the children are also regulated differently for males and females. Unless God features prominently in all deliberations around Marriage, Divorce or Custody, the proceedings are doomed to failure.
The Qur’ān
(The revelation of God Almighty) states that we should “help one another in
righteousness and piety and not help one another in transgression and
hostility”. This verse orders us to co-operate with each other and this extends
to the issue of Marriage, Divorce and Custody, where the co-operation of
parties is essential for a successful outcome.
The Qur’ān (The revelation of God Almighty) also states “truly the believers are brethren, so help the brethren to live in peace with one another”. Should we live in peace as prescribed, the issue of Divorce will inevitably not arise.
Concerning Polygamy, the compromise: “that the consent of the first wife of a potentially polygamous marriage be obtained before a husband is entitled to contract a subsequent union” should always be considered. This should be in the spirit of ‘co-operation’ and the desire to ‘live in peace’ as outlined above.
However, should parties contemplate divorce, and it appears that there is a reasonable possibility that the parties may become reconciled through marriage counsel, treatment or reflection, the court must postpone the proceedings in order that the parties may attempt reconciliation. If this is not possible, then regarding the Custody of the children, it must be recognized that Mutual co-operation is important in Islām, and an amicable decision regarding Custody in SA Law can also only be reached if there is mutual co-operation between the parties. This mutual co-operation will be “in the best interests of the child”.
Marriage, Polygamous relationships, Divorce and Custody therefore require a firmness of belief done sincerely with God consciousness, in order to ensure the fundamental ethical values found in the Qur’ān and Sunnah is victorious.
[1] Hahlo, HR. 1985. The South African Law of Husband
and Wife. Kenwyn: Juta and Co, LTD. Fifth edition. p. 4
[2] Ibid. p. 5
[3] Hahlo, HR. 1985. The South African Law of Husband and Wife. p.6.
[4] Ibid. p. 15
[5] Ibid.
[6] Ibid. p. 16
[7] Ibid. p. 17
[8] Ibid. pp. 19-20
[9] Q 2: 232, Q 4:3, Q 24: 32, etc
[11] Vol. 5: 2-13.
[19] DSP Cronje and Jacqueline Heaton. South African Family Law.
Pietermaritzburg: Interpak Books. pp. 20 – 21
[77] Zuhailiy, Wahba. AlFiqh AlIslami wa Adillatuhu
(vol.7). Dar alFikr Damascus. 1989. 2nd Edition, pp. 406-407
[118] Al Quran – Surah 49 Aayat 10
[119] Kamali M H – Rights to Education, Work, and Welfare in Islam: Sept 2006 – p. 190