Divorce

Every couple who is unable to solve their marital conflict tends to end their relationship through divorce. According to Syariah Law, there are several types of divorce, but the common types that are always used are talaq, khuluk, fasakh, and lian.

Types of Divorce:

• Talaq: Talaq occurs when the husband ends the marriage bond by pronouncing divorce. Talaq also happens when the husband violates the Ta’liq pronouncement marriage ceremony. Additionally, the wife can challenge her husband’s Talaq divorce application if she is convinced that the marital conflict that occurred is caused by him.
• Ta’liq: Ta’liq occurs when there is a breach of the pronouncement made by the husband after the marriage ceremony. Any breach of the terms of the said pronouncement by the husband gives the wife the right to file a complaint and claim her rights in the Syariah Court. The conditions of this Ta’liq are usually prepared by the marriage officiant. However, the parties are free to add any conditions as Ta’liq as long as they do not contradict the Islamic law.
• Khulu’: This is a specific divorce for wives who want to seek divorce without any fault by the husband. Khulu’ is pronounced by the husband at the request of the wife, with a mutually agreed sum of payment by the wife to the husband. If there is no agreement on the amount to be paid by the wife, the Court has the authority to assess the amount. Among the factors considered by the Court are the amount of dowry (Mahr), the socio-economic status of the parties before and during the marriage, and the reason for the divorce.
• Fasakh: The dissolution of a marriage by Syariah Court due to a circumstance mandated by Islamic Law. For example, the husband or wife disappears for a period of more than a year, the husband does not provide maintenance for three consecutive months, the husband or wife mistreats his/her spouse, and other circumstances permitted by the Islamic Law including a spouse being imprisoned, or having a sexually transmitted disease, and/or the husband being impotent.
• Li’an: Accusation of adultery by a husband against his wife.

Conditions for Divorce:

• The marriage was registered in Malaysia according to the Islamic Family Law (Act or Enactment) of the relevant states;
• The marriage fulfils the Islamic Law; and
• The divorce application may be filed where the husband or wife resides or is domiciled.

Divorce Procedure:

1. According to Islamic Law, when a husband and wife face conflicts, they are encouraged to seek advice from their closest family members.
2. If the parties require formal counselling, they can refer to the Counselling Unit of their respective State Religious Departments in an effort to save the marriage. If reconciliation cannot be achieved or one of the parties refuses to attend the counselling session, the Religious Officer will decide that the counselling process cannot continue and advise the parties to apply to the Syariah Court for divorce.
3. Both parties are encouraged to seek legal advice before filing a divorce application at the Syariah Court, to ensure that their rights are protected during the divorce process. If the parties cannot afford the legal costs, they can seek assistance from the Legal Aid Department and the Bar Council Legal Aid Centre in their respective states.
4. When the wife files a divorce application at the Syariah Court, the Court will issue a summons to the husband for his compulsory attendance in court. If the summons has been served in person on the husband and he fails to appear in Court without proper reason, a warrant of arrest may be issued against him to compel his attendance.
5. The court will review the divorce application by the claimant (Plaintiff) and determine whether both parties agree to the divorce.
6. For Talaq divorce applications, if a mutual agreement is reached between the parties, consent order for divorce will be recorded by the Court. If the party claimed against (Defendant) does not agree to the divorce application, the Court will refer the application to the Conciliatory Committee to find a solution. The Conciliatory Committee, chaired by an Officer appointed by the Syariah Court, consists of a representative of each spouse, such as close family members and people who know about the couple’s background.
7. For Fasakh, Ta’liq and/or Khulu’ divorce claims, if the Defendant agrees to a divorce, the Court may change the divorce application to an ordinary divorce by Talaq. If there is no mutual agreement to divorce, the Defendant will be ordered to file his/her Defence and/or Counterclaim in response to the Plaintiff’s divorce application. After the Defence and/or Counterclaim is filed, the parties will begin case management for trial which will be set by the Court later.
8. On the trial date, the parties will need to present evidence in the form of witnesses and/or documents relevant to the claim filed, including proof of marriage, birth certificates of children, etc. The court will hear the evidence of both parties and decide on whether to allow or dismiss the divorce application.
9. The court will decide on the divorce application based on the evidence presented.
10. Parties who are dissatisfied with the decision of the Syariah Subordinate Court can appeal to the Syariah High Court and so forth.

Claims Related to Divorce:

Wives can claim their rights during or subsequent to the divorce application. The main claims related to divorce are:-

1. Iddah maintenance to the wife during the Iddah period;
2. Maintenance of children and right to accommodation;
3. Hadhanah or custody of children;
4. Matrimonial property; and
5. Mu’tah

Iddah Maintenance

1. Iddah maintenance covers the wife’s personal expenses that must be borne by the husband throughout the Iddah period (three menstrual cycles and/or if the wife is pregnant, until the unborn child is born).
2. For arrears in maintenance for the wife, the outstanding sum can be claimed at this time.

Maintenance of children and right to accommodation

1. A wife has the right to claim maintenance expenses for children born during the marriage from the father of the children / her ex-husband.
2. The responsibility for child maintenance lies with the father/ex-husband.
3. Subsequent to the divorce, a wife may continue to reside in the matrimonial home throughout the Iddah period and/or if the children are still minors and need a place to live. If the wife remarries or commits immoral acts openly, this right to accommodation may be forfeited.