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Chapter 8
Related Sections
1
INTRODUCTION
2
MARRIAGE
3
Draft Marriage Bill (2023)
4
Civil marriages
5
CIVIL UNIONS
6
African customary marriages
7
Muslim and Hindu marriages
8
The rules of civil marriage
9
DIVORCE
10
Divorce in a civil marriage
11
Ending an African customary marriage
12
Ending a Muslim or Hindu marriage
13
The Family Court
14
Arrangements made at the time of divorce
15
CARE AND PROTECTION OF CHILDREN
16
Laws that apply to child care and protection
17
The Children’s Act and Children’s Amendment Act
18
Summary of the Children’s Act
19
Overview of important sections of the Children’s Act
20
CUSTODY, GUARDIANSHIP AND SUPPORT OF CHILDREN
21
Custody or care
22
Guardianship
23
The duty to support children
24
Parental responsibilities and rights
25
Children of African customary unions
26
Children of Muslim or Hindu marriages
27
Adoption of children
28
CHILD ABUSE AND NEGLECT
29
Laws protecting abused and neglected children
30
Reporting child abuse
31
Stopping child abuse using the Domestic Violence Act
32
Child sexual abuse
33
Removing children from abuse or neglect
34
Foster care
35
ABORTION
36
When may a woman have an abortion?
37
Consent to an abortion
38
Who may perform an abortion?
39
DEATH
40
Dying without a will
41
Dying with a will
42
Winding up a dead person’s estate
43
PROBLEMS
44
Problem 1: Getting a divorce
45
Problem 2. Entering into a civil union
46
Problem 3. Adopting a child
47
Problem 4. Getting maintenance through the Maintenance Court
48
Problem 5: Maintenance is not paid
49
Problem 6: Making a will
50
MODEL LETTER
51
Model letter: Request for social worker’s report to assist with application for legal aid
52
CHECKLISTS
53
Checklist: Marriage
54
Checklist: Divorce
55
Checklist: Maintenance
56
Checklist: Child abuse and neglect

Ending a Muslim or Hindu marriage

ENDING A MUSLIM MARRIAGE

The Divorce Amendment Act (No 1 of 2024) provides for recognition and protection of Muslim marriages in South Africa. It integrates specific provisions for Muslim marriages into the Divorce Act and addresses issues that were lacking for Muslim marriages. Key changes introduced by the Divorce Amendment Act and their implications for Muslim couples include:

  • Definition of Muslim marriages – A Muslim marriage can now be ended by a court order just like any other marriage. This gives Muslim couples access to the same legal procedures and protections when they are ending their marriage.
  • Maintenance and care of children – The Act gives courts the power to make orders regarding the maintenance, care, guardianship or contact with children from Muslim marriages. Courts can now make fair and just decisions about child custody, care and support, allowing Muslim parents to seek legal support when needed.
  • Redistribution of Assets – The Act allows for the redistribution of assets if a Muslim marriage is dissolved. The courts can order assets to be transferred between the parties, taking into account their direct or indirect contributions to the maintenance or increase of the estate during the marriage. This supports a fair division of marital assets.
  • Forfeiture of patrimonial benefits – Courts can order a party in a Muslim marriage to forfeit or lose their benefits if this is just and equitable. The courts will consider the duration of the marriage, the circumstances that led to its breakdown, and any misconduct by either party when making the decision.

The Divorce Amendment Act applies to all existing Muslim marriages, or Muslim marriages that are in the process of being terminated.

ENDING A HINDU MARRIAGE

If a man and woman were married by a priest in the Hindu religion, but they did not also have a civil marriage, the law says they were not lawfully married. So they don’t need to use the court if they want to get divorced. The current law does not protect Hindu women and children born into such marriages if they dissolve.