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A. Grounds of Divorce
1. According to Muslim law and the Administration of Muslim Law Act, a marriage can be dissolved in the following ways:
(a) Upon Husband pronouncing a divorce – (talak):
- By the Husband (via khuluk or independent of khuluk)”;
- By the Wife (talak tafweed); and
iii. By the arbitrator (hakam).
(b) Taklik / Cerai Taklik – (breach of marriage terms): by the Husband’s breach of any written condition of marriage.
(c) Khuluk – (divorce by redemption or compensation):
If a Muslim woman wishes to file for divorce, but the man does not agree to it, both sides can agree to a divorce by way of redemption or compensation (Khuluk). The Syariah Court will determine the sum of payment to be made by the Wife according to the man and woman’s financial situations respectively.
(d) Fasakh – (marriage annulment)
Fasakh refers to a divorce, where the Husband is unable to comply with lawful terms (set out within the Administration of Muslim Law Act or by customary practices). Some acceptable reasons for fasakh include; cruel treatment of the woman by the man; the husband falling seriously or terminally ill; if the husband is found to be impotent or suffering from mental illness; or where the husband has been imprisoned for at least 3 years and upwards.
(e) By reason of invalidity of the marriage
All Muslim marriages which have been solemnised must comply with and satisfy rules of the Muslim marriage laws. Any marriage in breach of these rules is therefore invalid under Muslim law and may be annulled by the Court.
2. It is important for you to state your grounds of divorce clearly.
A lack of information may not be beneficial for your case and may affect your claim/position on the ancillary issues (pertaining to your claim for custody, care and control, nafkah iddah and mutaah and division of matrimonial assets – including the matrimonial home – outstanding emas kahwin, outstanding marriage expenses, etc).
3. For the Husband, technically there is no necessity to have any grounds of divorce, due to his ability to pronounce Talak.
However, if the Husband fails to state his grounds of divorce, his case MAY be affected.
4. The Wife may apply for divorce on the grounds of either khuluk, taklik or fasakh. The Wife is ONLY required to bring 2 witnesses to support her case and/or cross examine her husband.
This also applies if the Husband is absent during the hearing or when he refuses to pronounce talak or when both parties refuse to appoint hakam – (arbitrators). Only in these circumstances will she be able to ask for the Court to dissolve the marriage as per the requirements of TALAK.
5. In the event that the Court directs parties to appoint hakam or when the Husband refuses to pronounce Talak and both parties agree to take up the services of Hakam. The outcome of the Hakam sessions should satisfy one of these three;
a)Husband agrees to pronounce Talak after the Hakam session.
b)Husband agrees to allow wife to pronounce Talak or herself. – Talak Tafweed
c)Hakam pronounces Talak on behalf of the husband (with or without the Husband’s consent). – Talak by Hakam
B. Procedure – 5 steps to get a divorce in Syariah Court
This also applies if the Husband is absent during the hearing or when he refuses to pronounce talak or when both parties refuse to appoint hakam – (arbitrators). Only in these circumstances will she be able to ask for the Court to dissolve the marriage as per the requirements of TALAK.
(a) REGISTRATION & MANDATORY COUNSELLING:
To kick start the divorce process, the spouse wishing to apply for divorce in Syariah Court must first submit a Registration Form. This form is downloadable from the Syariah Court’s website. It is available in both English and Malay. Upon receiving the FORM, parties will be notified to attend the Marriage Counselling Programme at one of the appointed community agencies. This is a mandatory counselling programme.
(b) COMMENCEMENT OF DIVORCE PROCEEDINGS IN SYARIAH COURT:
In the event that counselling fails, the case file will then be sent back to Syariah Court. The Applicant will then have to draft, file and serve the documents on their spouse, personally or through your lawyer. The deadline to file the Originating Summons is 6 months from the date of the final Marriage Counselling Programme session.
(c) MEDIATION:
Upon filing of the Originating Summons, parties will be notified to attend Mediation session at Syariah Court. The purpose of the mediation session is to explore the prospects of reconciliation. However, if parties do not wish to reconcile, the mediator will assist parties to reach a settlement on the ancillary matters. If a settlement is reached, parties will appear before the President of Syariah Court for a consent order to be recorded. Upon the Court’s approval of the settlement, the divorce proceedings will conclude.
(d) PRE-TRIAL CONFERENCE:
In the event the mediation fails, the case will be adjourned for a Pre-Trial Conference (“PTC”). The objective of the PTC is to prepare parties for a formal divorce hearing. Directions will be given at the PTC for parties to file the necessary document(s). Depending on the complexity of the nature of the parties’ case, there may be several PTCs held.
(e) HEARING:
Upon hearing the divorce and ancillary issues, the Syariah Court will deliver its judgment, either immediately or at a future date. The divorce proceedings come to a conclusion once a judgment is delivered. It is important for parties to understand that there may be several hearings,before the Court delivers its judgment.
Unlike a civil divorce in the Family Justice Courts, the Syariah Court does not make any maintenance order in respect of the Wife (during the marriage) or the Children. In Syariah Court only two types of financial provision may be granted to the Wife (i.e nafkah iddah and mutaah).
After receiving the orders made by the Learned President, if either party is dissatisfied with any of the orders, an appeal can be raised to the Syariah Appeal Board within 30 days from the date of the order.
C. Why choose us as your Syariah Divorce lawyer?
1. In the unfortunate event your marriage has reached its end, it is important to consult a Syariah divorce lawyer. It is important for you to know your rights before making ANY MAJOR DECISIONS.
2. If you need assistance or advice on any matter relating to Syariah Divorce, then do not hesitate to contact us.
Our lawyers have the relevant expertise and the understanding you will need in this difficult time. Our lawyers will support and guide you through your Syariah divorce. We work hard to put you at ease with efficient problem-solving approach on all issues pertaining to Syariah divorce.
3. Contrary to the belief that lawyers always charge a hefty legal fee, our specialised lawyers offer a free consultation to help identify how we can assist you and also offer instalment payments when engaged.
Throughout this challenging period, we will continue to provide you with the support and be available to assist you via videoconferencing, teleconferencing and email.
4. It is beneficial for you to engage a Syariah divorce lawyer if you are not familiar with the divorce procedures.
By doing so, you will be able to focus on your child/family needs, your physical and mental well-being , which is to be emphasised at this point in time in order for you to be able to make wise, sound and reasonable decisions while we represent you (i.e drafting and preparing all legal documents and attending court).
