Syariah Divorce In Singapore (Female Grounds Of Divorce)
Contrary to widespread belief, from an Islamic perspective, women are given the right to a divorce. Many Islamic scholars rely on the following verse from the Quran to give women a variety of options to petition for a divorce: “And women have rights equal to what is incumbent upon them according to what is just (2:227).”

 

Overview Of The Syariah Court In Singapore

Singapore’s Syariah Court derives jurisdiction from the Administration of Muslim Law Act (AMLA). AMLA provides for various aspects of Muslim law in Singapore. For example, AMLA provides for the establishment of key Muslim institutions such as the Majlis Ugama Islam Singapore (MUIS) to administer the religious life of Muslims, the Registry of Muslim Marriages and the Syariah Court to deal with Muslim family law.

 

According to Section 35(2) of AMLA, the Syariah Court deals with “actions and proceedings in which all the parties are Muslims or where the parties were married under the provisions of Muslim law”. Thus, this includes Muslim marriages and divorces. The Syariah Court also has jurisdiction over Muslim marriages where one party has renounced Islam during the course of marriage, and marriages that were first registered under the Women’s Charter and subsequently registered under Muslim law at the Registry of Muslim Marriages after one party converted to Islam.

 

Before acquiring jurisdiction, the Syariah Court must first determine that the parties involved are in fact Muslim. When the Syariah Court assumes jurisdiction over divorce proceedings, it would also have jurisdiction to make orders relating to matrimonial properties situated both within and outside Singapore. This is regardless of whether a court in another country also has jurisdiction over the case and the matrimonial properties. However, the Syariah Court has no power to grant personal protection orders (PPOs) or to hear applications for maintenance. These matters are dealt with by the Family Justice Courts.

 

A Wife’s Grounds of Divorce

Unlike a husband’s unilateral right to seek divorce through the pronouncement of “Talak” without having to provide reasons for grounds of divorce, a woman would have to provide reasons before filing for a divorce through means such as “Khuluk”, “Taklik” and “Fasakh”. If a Muslim wife wishes to file for divorce and the husband consents to it, the Syariah Court would request for the husband to pronounce divorce through “Talak” instead. Upon the husband’s pronounciation of “Talak”, the parties can legally file for divorce at the Syariah Court. The wife is not prohibited from seeking a divorce without the husband’s pronouncement of “Talak” however, and may do so through the following:

 

What Are The Grounds Of Khuluk?

“Khuluk” is derived from the Arabic word, Khula, which is the right of a woman to seek divorce from her husband. In return, she is required to compensate thehusband through monetary means. In contrast from Talak, the wife is also required to prove that her husband has done wrong and breached either Taklik or Fasakh. For this form of divorce, the Syariah Court will assess the amount of payment to be made by the wife in accordance with the status and means of the parties and will order the husband to pronounce a divorce by redemption. After the wife pays the husband the stipulated sum, the divorce can be registered.

 

What Are The Grounds Of Taklik?

Taklik is derived from Arabic, which means a conditional divorce, and can be seen as a conditional marriage stipulation. Taklik refers to a divorce due to the husband’s breach of express terms. These express terms refer to terms that are stated in a written taklik made at the time of marriage or after marriage (e.g. the Muslim marriage document). Parties are free to stipulate terms as part of their “contract” with each other. Once the wife can prove breach of any of these terms, she would be allowed to leave her husband. Should a women apply for Khuluk, she will have to prove that her husband has breached the Taklik before the Court decides if the divorce is valid under Muslim law.

 

What Are The Grounds Of Fasakh?

The last form of Muslim divorce is through Fasakh. Fasakh refers to a divorce due to the husband’s breach of implied terms. These terms are either implied by law (terms stipulated within AMLA) or implied by custom. For example, any desertion, cruelty, serious illness or impotence on the husband’s part provides the wife with reason to file for divorce. The husband’s failure to perform marital duties for a period of one year also constitutes breach. Additionally, according to Islamic law, the husband is required to provide maintenance for the wife. This maintenance includes things that are seen (zahir) such as food, clothing and shelter as well as things that are unseen (batin) such as sexual relations. A wife may divorce her husband if he has failed to provide maintenance for her for a period of 3 months, or if he has been sentenced to imprisonment for a period of 3 years or more.This dissolution of marriage can occur under any valid reason under the Hukum Syara and it means to annul the marriage. Under Section 49 (1) of the Administration of Muslim Law Act in Singapore, there is a provision of non-exhaustive list of grounds where a marriage can be annulled. These include failure of the husband to provide his wife with maintenance for 3 months, the husband was impotent at the time of the marriage and is still impotent to date and much more.

 

What If A Woman Is Unable To Apply Khuluk, Taklik or Fasakh To Seek Divorce?

If a Muslim wife is unable to invoke taklik, fasakh or khuluk (where the husband refuses to agree to a divorce by redemption) but still wishes to file for divorce, parties would then have to go for arbitration according to the principles of the Quran. The Syariah Court can appoint hakam (two arbitrators) at its discretion in family disputes. The two appointed hakam are to act for the husband and wife respectively on the issue of divorce. There may be a preference for close relatives of the parties who have knowledge of the circumstances of the case, which will be known as ‘Hakam” (arbitrators) The appointed Hakam will conduct the arbitration in accordance with directions of the Syariah Court and according to Muslim law. The hakam will endeavor to agree and to help the parties reconcile. However, if reconciliation is not possible, the hakam may obtain authority from their principals (the husband and wife) and thereafter exercise their power to grant a divorce.

 

Divorce Procedures

Once parties have filled in and submitted a registration form, the process will take about 4 to 6 weeks. Thereafter, both parties would be required to attend mandatory counselling for a period of 2 to 4 months to ensure their certainty in going forward with divorce procedures. Should counselling fail, the Syariah Court will arrange for the initiating party to file a case statement that sets out the grounds for divorce. The Syariah Court would then prepare an Originating Summons (OS) and proceed to serve it on the other party as defendant. Note that the OS can be filed by either party in person without the help of lawyers, and that the court would assist in serving the papers on the defendant.

 

After the OS is filed and served, mediation is the first court session for Muslim parties applying for divorce at the Syariah Court. This means that parties must undergo mediation before the case proceeds to a hearing. At the mediation, parties would discuss the divorce and ancillary matters. Where parties agree, the mediation agreement would be recorded by the mediator and can later be converted into a consent order for divorce.
After a waiting period of 3 months, a divorce certificate would be issued and parties would be legally divorced.

 

Where mediation fails and parties cannot reach an agreement, the case would proceed to pre-trial conference(s) where the Syariah Court would order for documents to be produced and for each party’s pleadings to be filed. During the pre-trial conferences, a hearing date would also be set. At the hearing, the Syariah Court would hear both the issues of the divorce and the ancillary matters simultaneously.

 

After the hearings have been completed, the Syariah Court would issue a court order stating its decision on the divorce and ancillary matters. Note that at any point during Syariah Court divorce proceedings, parties may agree to have questions of custody, access to children or division of matrimonial assets to be moved from the Syariah Court to the Family Justice Courts. Even in the absence of agreement by both parties, the Syariah Court may also grant permission in appropriate cases for one party to raise these matters at the Family Courts.

 

In the event that you do not agree with the decision of the Court, you may file an appeal to the Appeal Board within 30 days from the date of the decision. Do seek legal advice from your lawyers to ensure that your appeal is validated and substantiated before filing for one. The Appeal Board is located at Islamic Religious Council of Singapore (MUIS), Singapore Islamic Hub, 273 Braddell Road, Singapore 579702.

 

How we can help

That being said, filing for a Muslim divorce and the divorce procedures in Singapore are delicate issues and may be too technical for you to fully understand alone. We understand that going through such an event in your life is difficult and emotional. At I.R.B Law we have experienced lawyers who are well versed in Civil and Syariah divorce proceedings who will be able to guide you through and explain to you throughout each and every stage of your divorce. So contact us so that we can advise you on your matter and help you focus on getting back up on your feet.

 

Our first consultation is usually free as we wish to focus on you and not your wallet. Don’t hesitate and reach us at Hello@irblaw.com.sg or call us at 6589 8913.

 

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