Open AccessTHE AWARDING OF POST-DIVORCE MAINTENANCE TO A MUSLIM EX-WIFE AND CHILDREN IN THE SOUTH AFRICAN COURTS: THE INTERACTION BETWEEN DIVINE AND SECULAR LAW
Author(s) -
Razaana Denson,
Marita Carnelley
Publication year - 2021
Publication title -
obiter (port elizabeth. online)/obiter (port elizabeth)
Language(s) - English
Resource type - Journals
eISSN - 2709-555X
pISSN - 1682-5853
DOI - 10.17159/obiter.v30i3.12412
Subject(s) - law , family law , wife , islam , sharia , political science , legislature , marriage law , law reform , civil law (civil law) , commission , analogy , sociology , public law , history , linguistics , philosophy , archaeology
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.