Divorce and the law of Khul: A type of no fault divorce found within an Islamic legal framework

Abstract

The non-recognition of Muslim marriages in South Africa goes back as far as the case of Seedat's Executors v The Master (Natal) where the Appellate Court in 1917 expressly stated that "with us marriage is the union of one man with one woman, to the exclusion, while it lasts, of all others". As a consequence, South African courts have concluded that Muslim marriages are potentially polygynous and therefore invalid. The South African courts under a progressive constitutional dispensation gradually moved from this position. Islam set in motion a new course and introduced innovative standards concerning the rights and duties of women. One of the standards introduced by Islam was the transformation of a woman from being an "object of sale" and directing the husband to pay mahr (dowry) to his wife. The institution of marriage in Islam is regarded as one of the most virtuous and approved acts. However, Islam also permits the dissolution of marriage. The dissolution of marriage must be exercised only under exceptional circumstances. In most instances, Muslims would give preference to reconciliation because of their belief system that Islam despises divorce. Khul' refers to a woman's right to divorce under Islamic shari'ah law. It is considered to be a release for payment by the wife, and thus a woman is liberated from her marriage in return for some (or all) of the mahr she was paid at its inception. There are a number of disadvantages when a wife seeks a divorce by way of khul'. One such disadvantage is that when the marriage is dissolved by this method, not only is the marriage dissolved, but the husband's duty to pay a deferred mahr also evaporates. Yet the practice continues to be met with resistance and for some women a khul' divorce remains difficult to obtain, as there must be a fear of desertion, abuse or sin in order for it to be granted. And since the payment of compensation or the renouncement of any financial claim is central to the notion of khul', only women who have the financial means may have access to such a divorce.