By Fatima Schroeder
High Court Reporter
Muslim men who might be thinking of divorcing their wives by SMS: Do not press send.
This is the message from Muslim clerics and scholars of sharia, disturbed by an emerging trend of high-tech instant divorce common in contemporary Malaysia and the United Arab Emirates.
But despite their reservations, they are forced to acknowledge that the short message service (SMS) divorce does indeed meet the requirements for a marital repudiation under sharia.
A written talaq is one accepted form of the repudiation, local authorities approached by the Cape Argus conceded.
Providing the words are clear and unambiguous, and the letters not distorted, the divorce would be valid.
Even the impersonal mock-up concocted as an illustration on this page could serve as a final order of Muslim divorce, if it had really been sent by the husband and underwent a strict process with the Islamic judicial authorities.
If the Muslim Marriages Bill, currently before Parliament, is passed into law - and if the couple concerned had registered their marriage in terms of its provisions, it would merely be the beginning, and not the end of divorce proceedings.
The matter would first be put to mediation and then confirmed by the courts.
If still not resolved, the court would decide the matter, assisted by experts in sharia.
But even as things stand, the Muslim Judicial Council (MJC) remains reluctant to accept this practice.
"The MJC is not in favour of confirming any talaq issued outside its offices by husbands acting on their own, without a due process of consultation and a search to find common ground for reconciliation," Moulana Yousuf Karaan, head of the Fatwa committee said.
Moulana Karaan also raised a series of technical problems, saying such a talaq would have to undergo a strict verification process.
First port of call would be to make sure the sender was indeed the husband.
Then, the MJC would investigate the circumstances in which the talaq was given, the wording, and the grounds for issuing it in that manner.
Only after satisfying itself on all these fronts would the MJC give its verdict on validity, proprietary consequences and post-talaq obligations.
Muslim scholar Shaheed Mathee of UCT's Centre for Contemporary Islam, concurred in terms of the difficulty of verifying the talaq, listing some forensic problems: the wife could claim never to have received the message; the husband could say his cellphone had been stolen, or that somebody else had sent it from his phone without his knowledge; and the authenticity of the message could also be disputed.
However, for Mathee, the key issues are not procedural but moral.
"Men don't propose marriage via SMS, so why should they divorce in this manner?" he asked.
"We should not forget about the human aspect here.
"This is not a commercial transaction.
Human beings are not commodities," he said.