Muslim divorce and the 1996 Divorce Amendment Act: The cart before the horse?

Abstract

The purpose of this article is to clarify some issues regarding Muslim divorces which have been the topic of debate in previous issues of De Rebus (1997 DR 495; 1998 (Jan) DR 55; 1998 (Aug) DR 31). The Divorce Amendment Act 95 of 1996 as it is discussed in this article has relevance only for Muslim parties who intend to terminate a lawful civil marriage but who have also entered into a religious union with each other only. Polygynous unions as such are therefore not discussed here. (For detail in this regard see my LLM thesis A comparative study of the South African and Islamic law of succession and matrimonial property, special attention to the implications for the Muslim woman (University of the Western Cape 1991 ).) Nonetheless, because practitioners often confront legal problems when dealing with matters of Muslim Personal Law (MPL), I find it necessary also to elaborate on the status of that law in South Africa. Furthermore, while a brief background of Muslim divorces is provided, a detailed analysis will be the subject of an article intended to be published elsewhere later this year.