In terms of Islamic law, the dissolution of a marriage can be brought about by the death of one of the spouses of the marriage. When spouses are married according to the accrual system, the calculation of the accrual takes place at the time the marriage ends.
3 2 South African law
The only time such a woman can leave her home is in an emergency - for example, to buy food or go to work. 175. introduced irretrievable breakdown of marriage183 and mental illness and prolonged unconsciousness184 as grounds for divorce. Due to the expansion and relaxation of grounds for divorce, South Africa has been described as one of the easiest countries in the world to obtain a divorce, as divorce is essentially available on demand.185. The specific grounds for divorce in Article 5(1) and (2) of the Divorce Act are very detailed, narrow and precise and require the evidence of medical experts to be given as grounds for divorce.
By citing the irretrievable breakdown of the marriage as a ground for divorce, the plaintiff can escape the strict requirements set out in clause 5. From the definition of the term "divorce", it can be concluded that a civil marriage can be dissolved only by filing a lawsuit divorce in a court. Furthermore, in terms of section 6 of the Divorce Act, the court can also refuse and in fact cannot grant a divorce decree until the court makes a decision.
3 3 The law of England and Wales
The definition attributed to "adultery" is the voluntary sexual intercourse between a married person and a person of the opposite sex, whether married or not, who is not the married person's spouse.207 The marriage is considered irreparable. be broken where one spouse has committed adultery and the other spouse finds it unbearable to live with the guilty spouse.208 The spouse who applies for the divorce (petitioner) cannot rely on his or her own adultery.209 In terms of section 1(2)(a) of the Matrimonial Causes Act 1973, the petitioner is required to prove that the other spouse (respondent) has committed adultery, and is required to demonstrate that the petitioner finds it intolerable to live with the respondent to live. However, the courts found that, despite the presence of two elements - namely adultery and the fact that the innocent spouse finds it unbearable to live with the guilty spouse - the latter element does not necessarily have to be linked to the first. 210 The fact that one spouse finds it unbearable to live with the guilty spouse is not necessarily attributed to adultery. 211. Article 1(2)(b)214 states that an irretrievable breakdown of the marriage can be inferred where one spouse acts in such a way that the other.
This requirement is considered fulfilled even if the spouses continue to live in the same house if they have separate households. 227. In an attempt to reduce the animosity and bitterness that usually occurs between divorcing spouses, there has been a departure from the fault-based divorce law by introducing this ground for divorce.228 In order to meet the requirements set out in this ground for divorce divorce, one of the spouses must leave the matrimonial home or, if the spouses continue to live in the same house, they must have separate households.229 The required "continuous" period of separation may consist of shorter periods, provided that the breaks in the cohabitation are not longer from six months.230 As far as consent is concerned, only consent is required for dissolution of marriage and not for divorce.231. v) Living separately for five years. In relation to this ground for divorce, the spouses must have lived separately for a continuous period of five years immediately preceding the filing of the petition for divorce.
3 4 Comparison
In terms of grounds for divorce, there are major differences between Islamic and South African law. Divorce law in South Africa recognizes the irretrievable breakdown of marriage, as well as mental illness and persistent unconsciousness as grounds for divorce. In contrast, where the spouses are married under South African or English law, the divorce action must be brought in a court.
Finally, for spouses married under South African law, there is no period of iddah for the wife, regardless of whether the marriage ends by death or divorce as in Islamic law. In South African law, the parties can remarry once the divorce has been finalised. These differences once again highlight the dilemma of Muslims in South Africa, England and Wales as the divorce law in terms of Islamic law is vastly different from that of South African and English law.
When the woman is pregnant at the time of the divorce, the man must support her throughout the duration of the pregnancy, as well as while she is nursing the child.244 Therefore, the man is obliged to support her. the woman during pregnancy and after the birth of the baby, is further obliged to pay his wife for breastfeeding.245 However, after the birth of the baby, he is not obliged to support the previous wife. 246. In Islamic law, the responsibility for maintaining a divorced woman returns to her relatives: son, father or other relations. 247 As for the ex-wife, once the period of Idat has passed, she does not have a request for alimony from her ex-husband, although she may request childcare services. 248. At the time of divorce, the wife is also entitled to any unpaid alimony due to her, which has accumulated during the marriage, as this is a debt to the husband's property that she does not foresee.249 The father, in addition to maintaining his children, is also responsible for the cost of childcare.250 When the children are under the custody of the mother, their father is obliged to reward her for the childcare services she provides by caring for their children.251 The father or ex-husband must provide housing for him and the children born of the marriage. 252.
When the amount of the obligation is determined and agreed upon before the marriage and the divorce takes place before the end of the marriage, the husband must pay the wife half of the stipulated amount.256 A woman seeking to dissolve the marriage by khula must also pay the entire or at least part of the dowry she received from her husband. In other words, if the marriage was polygynous, then the eighth part of the property is divided equally between all wives. Since spouses keep their assets completely separate during the marriage, they do not have the right to divide each other's pension during a divorce.
4 2 South African law
Before the entry into force of the Matrimonial Property Act in 1984, if a woman did not want to fall under her husband's marital powers, the parties entered into a marriage outside community of property. Under Article 7(3), only the following spouses can apply for a redistribution order: spouses who were married before the entry into force of the Matrimonial Property Act with a marriage contract excluding community of property, community of profits and losses, and accrual, or who were married before the commencement of the Marriage and Matrimonial Property Law Amendment Act within the meaning of section 22(6) of the Black Administration Act.303. In terms of Article 7(4), the court may make a redistribution order only if it is satisfied that it is fair and just because the spouse seeking a redistribution order has contributed directly or indirectly to the maintenance or increase of the estate of the other spouse. during the continuance of the marriage.
These factors are the existing assets and financial liabilities of the clients; any donation from one party to another; any order of deprivation made in terms of section 9 (1) of the Divorce Act and finally any other factor which the court thinks should be taken into account. The general rule is that the mutual obligation of maintenance between spouses ends when the marriage ends, either through death or divorce. This position prevails, unless it is clear from the content of the will that the testator intended to inherit from his previous spouse, regardless of the divorce.
4 3 The law of England and Wales
The existence of a separation agreement will be taken into account by a court when exercising its discretion to achieve a result that is fair and just as set out in section 25 of the Marriage Act 1973. In order to encourage parties to come to an agreement regarding the division of their assets, Financial Dispute Resolution was introduced in 2000. 362 S 23 of the Matrimonial Causes Act 1973 allows the court to make orders for secured or unsecured periodic payments or a one-time payment.
Under section 363 s 24 of the Matrimonial Causes Act 1973, a court may make orders for the transfer or settlement of property, or for the variation of an existing settlement. The list of factors provided for in Article 25(2) is not exhaustive as the courts are also mandated in terms of Article 25(1) to take into account all the circumstances of the case. The courts also have the power to make two types of orders in relation to a spouse's pension, namely an order for attachment of the spouse's pension383 or a pension sharing order.
4 4 Comparison
While both South African and English law contain provisions for pension sharing, there is no equivalent provision in Islamic law.
5 CONCLUSION
