Divorce by Fasakh

Divorce by Fasakh

What is Fasakh?

The Arabic term “fasakh” literally means to annul or to rescind an agreement or a bargain. In the context of Muslim matrimonial law, fasakh refers to the annulment (or rescission) of marriage on permissible grounds, i.e. permissible under Muslim law.

The annulment or fasakh is effected by way of an order of the Court.

The Law In Singapore

Section 49(1)(a) to (f) of the Administration of Muslim Law Act (Cap. 3) (AMLA) permits a wife to apply to the Court for an order of fasakh annulling her marriage with her husband on one or more of the following grounds:

  1. that the husband has neglected or failed to provide for her maintenance for a period of 3 months;
  2. that the husband has been sentenced to imprisonment for a period of 3 years or upwards and such sentence has become final;
  3. that the husband has failed to perform, without reasonable cause, his marital obligations for a period of one year;
  4. that the husband was impotent at the time of the marriage and continues to be so;
  5. that the husband is insane or is suffering from some chronic disease the cure of which would be lengthy or impossible and which is such as to make the continuance of the marriage relationship injurious to her;
  6. that the husband treats her with cruelty, that is to say:
    1. habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment;
    2. associates with women of ill repute or leads an infamous life;
    3. attempts to force her to lead an immoral life;
    4. obstructs her in the observance of her religious profession or practice;
    5. lives and cohabits with another woman who is not his wife; or
    6. if he has more wives than one, does not treat her equitably in accordance with the requirements of the Muslim law.

Additionally, Section 49(1)(g) of AMLA permits a husband or a wife to apply to the Court for an order of fasakh annulling his or her marriage “on any other ground which is recognised as valid for the dissolution of marriage by fasakh under the Muslim law.” These other grounds include, some physical defect in either the husband or the wife which prevents sexual intercourse, some infectious or injurious disease (e.g. HIV) suffered by the husband or the wife, the disappearance of the husband or the wife and whose present whereabouts are not known or non-consummation of marriage.

The Principal Rules Of Fasakh

  1. Unlike a divorce by way of khuluk (which may only be applied for by a wife), a divorce by way of fasakh may be applied for by a husband or a wife, depending on the ground or grounds in Section 49 of AMLA which is or are relied upon in the application. Alternatively, a husband may pronounce the talak on his wife instead of applying for a divorce by fasakh.
  2. The decision to grant or dismiss any application for divorce by fasakh rests exclusively in the hands of the Judge hearing the application, exercising his discretion after hearing and accepting the evidence of the applicant (the husband or the wife) and at least 2 adult male Muslim witnesses. The requirement for witnesses in fasakh applications is expressly provided for in Section 49(4) of AMLA.
  3. In a divorce by way of fasakh, the husband is not required to pronounce the divorce (talak). The marriage is annulled by the order of the Court.
  4. A divorce by way of fasakh may not be revoked by way of reconciliation (rujuk). A divorce by fasakh effects a talak bain sughra. In other words, if the husband and the wife wish to get back together after their divorce by fasakh, they must remarry and undergo the solemnization (nikah) ceremony again.
  5. A divorce by way of fasakh is not considered and does not count as a talak and it does not reduce the number of talak left in a marriage. For example, a husband may have divorced his wife on 2 separate occasions in the past. If the couple is subsequently divorced by way of fasakh, this last divorce does not count as the 3rd or final talak or talak bain kubra. In other words, after this last divorce (by fasakh), the husband may immediately remarry his wife after a prescribed waiting (iddah) period.
  6. A wife who has been divorced by way of fasakh is not entitled to receive nafkah iddah as there is no iddah period during which she and her husband may reconcile. Further, some Islamic scholars hold the view that a wife who has been divorced by way of fasakh is not entitled to receive mutaah. However, we are of the view that the Court has the discretion to award the wife mutaah, especially in cases where the reason for the annulment had not been caused or brought about by a fault on the part of the wife.
  7. Finally, a divorce by way of fasakh has no bearing on the issues of division of matrimonial assets or custody of the minor children of the marriage which will be decided by the Court in accordance with established principles and practices.

About the author

Abdul Aziz
Abdul Aziz

Partner

Mr Abdul Aziz Bin Abdul Rashid holds a law degree from the National University of Singapore and heads a team of lawyers in the firm who handle both contentious and non-contentious Muslim law matters.

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