DIVORCE AND DISSOLUTION OF MUSLIM MARRIAGES: A HISTORICAL ANALYSIS OF THE POSITION OF A MUSLIM WIFE SEEKING DIVORCE IN THE SOUTH AFRICAN LEGAL CONTEXT

Abstract

South African Muslims constitute approximately 1.7 % of the national population. The government of South Africa has not enacted any legislation concerning Islamic marriage, divorce, and related matters. Drawing upon a fictitious case of dissolution of marriage, this article analyses the position of Kashifa, who married Uthman, both South African Muslims, in terms of Islamic law in 1980 in Cape Town.  Under the marriage terms, Uthman agreed to pay Kashifa a prompt dower at the time of the Islamic marriage, a deferred dower due on 10 January 1990, and provide for Kashifa’s maintenance in terms of Islamic law. As Uthman has not been maintaining Kashifa since 1 January 2000, Kashifa has asked Uthman on several occasions to issue her with an Islamic divorce. Uthman, however, has not been forthcoming about issuing an Islamic divorce. This article investigates the position of Kashifa regarding three matters (1) the dissolution of her Islamic marriage, (2) the status of her unpaid deferred dower, and (3) the status of her unpaid maintenance. This article investigates the position of Islamic marriages before the enactment of the South African constitutions. The impact of the South African constitutions on the status of Islamic marriages in South Africa is then looked at with a focus on the scenario at hand. The impact is looked at regarding both litigation and legislation. The article concludes with an analysis of the findings and a few recommendations to ensure the accommodation of Muslim Islamic Law in the existing legal system of South Africa.