The Custody Of Minor Children During The Dissolution Of Marriages: A Comparison Of Child Custody In South African Islamic Law And Common Law

In Islamic law, child custody is divided into physical custody and legal custody. Physical custody is given to a child's mother during the age of dependency, while legal custody is automatically assigned to the child's father. For a mother to qualify for custody and retain it in terms of Islamic Law, she must, among other things, not remarry. This requirement unfairly discriminates against women because the same is not expected of the father. Moreover, a mother is expected to reside in an environment where the father can visit and come back the same day. Failure to adhere to the above requirements may lead to custody being taken away from the mother. Again, this is discriminatory and leaves much room for arbitrary decisions that might not be in children's best interests. The South African Common Law regulation of child custody is more likely to promote the best interests of the child than its Islamic counterpart. In a recent landmark judgment, the South African Supreme Court of Appeal (SCA) held that the failure to give full legal recognition to Muslim marriages amounted to the violation of Muslim spouses' right to equality, dignity, children's rights, and the right of access to courts. Moreover, all provisions of South Africa's Divorce Act will now apply to all Muslim marriages dissolved by divorce. Therefore, the SCA rightfully extended the Common Law position on child custody to Islamic marriages to safeguard the best interest of the child.