Abstract
The article discusses the differences between the South African civil law and Islamic law with specific reference to post-divorce spousal maintenance as well as postdivorce maintenance of children in light of recent case law, Mahomed v Mahomed [2009] JOL 23733 (ECP). The issue of post-divorce spousal maintenance is especially controversial and it is noted that in both systems the issue should not beseen in isolation, but in conjunction with the other protection possibilities within each of these systems. The apparent conflict between the South African constitutional principles and the principles of Islam is noted and compared to the Indian legal and constitutional experience, although reference is also made to the Algerian legal position. Drawing an analogy with the South African legal developments vis-à-vis customary marriages, the article concludes and submits that any enactment by the South African legislature, dealing with the maintenance of spouses and children after divorce, whether in the format of the Muslim Marriage Bill as set out in the 2003 South African Law Reform Commission Report, or in any other format, should take cognizance of the rulings and teachings of Islam.
Highlights
Whilst it is recognised that religious-based marriages, like marriages entered into in terms of Islamic law, are often considered to be discriminatory on the grounds of gender, it is submitted that such discrimination should be allowed in so far as it is required by the tenets of the religion
Parties who enter into a marriage in terms of Islamic law are not forced to do so as the consent of both parties to the marriage is required
If the parties choose to enter into a marriage in terms of Islamic law, they have to accept the consequences which arise from such marriage
Summary
The article discusses the differences between the South African civil law and Islamic law with specific reference to post-divorce spousal maintenance as well as postdivorce maintenance of children in light of recent case law, Mahomed v Mahomed [2009] JOL 23733 (ECP). The issue of post-divorce spousal maintenance is especially controversial and it is noted that in both systems the issue should not be seen in isolation, but in conjunction with the other protection possibilities within each of these systems. Drawing an analogy with the South African legal developments vis-à-vis customary marriages, the article concludes and submits that any enactment by the South African legislature, dealing with the maintenance of spouses and children after divorce, whether in the format of the Muslim Marriage Bill as set out in the 2003 South African Law Reform Commission Report, or in any other format, should take cognizance of the rulings and teachings of Islam
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