Question: 

A person registers his marriage with the Home Affairs , not knowing that the estate of himself and his wife will now automatically become a joint estate- in community of property- 

He would now like to resolve this issue. 

There are two avenues available legally.

Option 1-  A High Court application to change his matrimonial property regime to Ante Nuptial Contract without accrual. This is possible, but it is very expensive.(it can cost around R40 000).

Option 2- the wife can issue a divorce,  which he does not object to. And then they re-marry in terms of the Ante Nuptial Contract. The cost of this will not exceed R5000.

Please advise if option 2 is permissible? Will Talaaq be effective if the wife issues a divorce in court and the husband does not object to it? 

Answer: 

If the wife unilaterally divorces the husband in a secular court without the consent of the husband, and without him appointing her to adopt the said procedure then, in terms of Shari’ah, the divorce will not be valid, since a woman is not permitted to unilaterally divorce her husband in Shariah. It will be acceptable for her to then remarry him in court (under the Anti Nuptial contract without accrual) and thereby attain the required documentation.

However, if the husband instructs her to adopt such a procedure or even appoints her as her representative in filing for a court divorce, and she acts on his instructions then the divorce will be valid legally, as well as in terms of Shariah. She should therefore be very cautious in adopting the above procedure.

AND ALLAH TA’ALA ALONE IN HIS INFINITE KNOWLEDGE KNOWS BEST

ANSWERED BY: Mufti Mohammed Desai 

CHECKED AND APPROVED BY: Mufti Muhammed Saeed Motara Saheb D.B 

Date: 24 Dhul Qa’dah 1441 

English Date: 16 July 2020