DIVORCE (MUSLIM MARRIAGES)

DIVORCE (MUSLIM MARRIAGES)

This article aims to provide a you with a brief overview of the Syariah Court’s divorce processes and procedures, grounds for divorce in Syariah law and other issues that might be discussed by the Court such as custody, care & control and access of children as well as what you can claim from your spouse.

Process and Procedure

Any party to a marriage can file a divorce in Syariah Court regardless of whether talak has been pronounced or not. This can be done by completing the Registration Form with the required supporting documents. An application process will take around  four to six (4 to 6) weeks. Upon which a compulsory counselling session may be held. For the party initiating the divorce proceeding, attendance is mandatory regardless of the attendance of the other party. Failure to attend without a valid reason would result in the dismissal of the divorce registration.

 

After filing for a divorce in the Singapore Syariah Courts a date will be set for the party to file an Originating Summons. The party filing the divorce will also need to file other documents as per the checklist that is provided. Filing of these documents are important and required by the party.

 

Subsequently the party responding to the divorce proceedings will have to file a Memorandum of Defence within twenty-one (21) days upon receiving the Originating Summons.
If either parties have lawyers appointed, the lawyers will file the relevant documents on your behalf. It is worth nothing that if the parties have one or more children below the age of fourteen (14) years old, a Proposed Parenting Plan is required to be submitted by both Parties along with their Case Statement. These documents are downloadable in the Syariah Court’s website for guidance.

 

After the relevant documents have been filed by both parties a date will be set within five to six (5-6) week so for mediation. The purpose of mediation is for parties to discuss and agree upon ancillary matters. The ancillary matters concern matters such as the Custody, Care & Control of the Children as well as access to the Children.
It is important to note that if the parties are able to agree on the ancillary matters, the divorce can be finalised within two (2) weeks and the divorce can be granted within three (3) months. This happens because the matter is proceeding on an uncontested basis. If the parties are unable to agree upon the ancillary matters then the finalisation of the divorce will take much longer to obtain and the length of time needed will vary from case to case.

 

If parties disagree on whether or not talak was pronounced i.e. either party contests the divorce or parties cannot come to an agreement on ancillary matters, a Pre-Trial Conference (PTC) will be conducted (parties do not have to attend if represented by their respective lawyers) and affidavits have to file between both parties. The more acrimonious the divorce is, the longer the proceedings will take, with some spanning to a year or more before the final judgment of divorce will be granted.

Grounds for Divorce in Muslim Marriages

There are several grounds for divorce under Muslim law. The first and most common is the pronouncement of talak by the husband. The wife is not precluded from seeking a divorce without the husband’s pronouncement of talak. The wife may request a divorce by redemption (khuluk) from the husband. If the husband does not agree to a divorce by khuluk, the Syariah Court or its registrar may appoint two hakam to act for the husband and wife respectively, who shall then decree a divorce if both hakam, according to the Muslim law, are satisfied on the facts that the marriage beyond reconciliation. A divorce by fasakh can be granted if the husband has neglected or failed to provide nafkah (i.e. maintenance) for the wife for a period of 3 months or marital obligations for a period of one year; the husband has been sentenced to imprisonment for a period of 3 years or more; impotence on the part of the husband or there has been habitual family violence. A divorce may also be granted due to a breach of taklik – terms in writing made at or after the marriage. Generally, such terms can be found at the back of a marriage certificate.

What You Can Claim From Your Spouse

The wife can claim “nafkah iddah”, which is the maintenance during the period within which a divorced woman or a widow is forbidden by the Muslim law to remarry. The duration can be after three menstrual cycles; after confinement if, at the time of divorce, the woman is pregnant; or three months for a woman who has reached menopause or for a girl who has not begun menstruating.

 

Additionally, the wife can claim “mutaah” – the consolatory gift for a wife who has been divorced by her husband.

 

The amount of nafkah iddah and mutaah is proposed by the wife and is subjected to the Court’s discretion to determine what is appropriate after taking into account the husband’s ability to pay and the circumstances surrounding the divorce.

 

The wife can also claim her husband’s CPF and the nett sale proceeds of HDB flat should they be sold. However, parties’ proposal on the amount that can be claimed is subjected to the Court’s assessment after taking into account parties’ direct and indirect contributions during the marriage as well as the husband’s ability to pay. In the event of a joint tenancy of the HDB flat, respective parties’ CPF contributions will be refunded.

Maintenance, Custody, Care & Control and Access

Ancillary orders for maintenance for wife and or children may be made by way of a consent order if mutually agreed upon by both parties in a mediation session conducted by a Syariah Court’s appointed mediator. If such orders are not complied with, parties can only enforce such orders in the Family Justice Courts and not the Syariah Court.

 

Child custody grants the custodial parent(s) authority in making major decisions regarding their child. Some of these decisions include matters concerning education, religion and decisions regarding the well-being of the child. Courts are inclined to give joint custody orders where there is no history of abuse, or the relationship of the parents is not highly acrimonious.

 

Care and control are only given to one parent, who will be involved in the child’s day-to-day matters. It is the party the child/children reside with. The parent not given care and control will be granted reasonable and/or supervised access to the child for the period agreed by both parties or by which the Court deems appropriate.

How we can help

At I.R.B. Law, we have experienced Syariah lawyers who are well versed in Civil and Syariah divorce proceedings which will be able to guide you through and explain to you throughout each and every stage of your divorce. We understand that going through such an event in your life is difficult fraught with emotional pangs.

 

So contact us to receive advice on how your divorce proceedings can best be tackled in order you can focus on getting back up on your feet. Our first consultation is usually free as we wish to focus on you and not on your wallet. Don’t hesitate and reach us at hello@irblaw.com.sg or call us at 6298 2537.