This article discusses the various grounds of divorce and the legal consequences of the various types of divorce in Muslim law.
Partner & Head of Muslim Law Practice, Abdul Aziz explains the Grounds of Divorce in the Syariah Court.
Grounds Of Divorce
Under Muslim law, a marriage may be dissolved:
- Upon the pronouncement of divorce (talak) by:
- the husband by way of divorce by redemption (khuluk); or
- the husband independently of khuluk; or
- the wife in cases of talak tafweed; or
- the Arbitrator (Hakam); or
- By the Court upon a finding that the husband has breached a written condition of marriage (taklik); or
- By the Court upon decreeing an annulment (fasakh);
- By the Court upon a finding that the marriage is invalid under Muslim law.
Divorce By Pronouncement Of Talak By The Husband Or By Way Of Khuluk
A husband may apply for divorce or consent to his wife’s application for divorce and thereafter voluntarily pronounce the talak: Sections 46(B) and 47(3) of the Administration of Muslim Law Act (Cap. 3) (AMLA).
Alternatively, the husband and the wife may agree to divorce by way of khuluk as provided for in Section 47(4) of AMLA. Such a divorce is effected by the husband pronouncing the talak upon payment of a sum of money by the wife to the husband.
In Singapore, a husband may pronounce the talak even before commencing divorce proceedings in Court.
Talak tafweed is not expressly provided for in AMLA but is recognised as valid under Muslim law. A talak tafweed is effected upon the wife pronouncing the talak after accepting the husband’s delegation to the wife of his right to pronounce the talak. In such a case, the talak is pronounced by the wife and not by the husband.
Talak by Hakam
Section 50 of AMLA provides for the appointment of Arbitrators (Hakams). If a husband does not consent to the divorce applied for by his wife and/or the evidence presented does not show that the husband has breached any written condition of marriage (taklik) and/or the evidence presented does not establish any ground upon which the Court could decree a fasakh, the Court is empowered to order the appointment of a Hakam each for the husband and the wife. If the Hakams are unable to effect a reconciliation and are of the opinion that the husband and the wife should be divorced, the Hakams may effect a divorce by a pronouncement of talak by either of them. In such a case, the talak is pronounced by the Hakam and not by the husband or the wife.
Cerai taklik is provided for in Section 48 of AMLA. If a husband does not consent to the divorce applied for by his wife, but the evidence presented by the wife establishes that the husband has breached a written condition of marriage (taklik) the Court may declare that a divorce has taken place by reason of that breach. One such condition is: if at any time, the husband leaves the wife or does not provide maintenance for the wife for a continuous period of 4 months or more, the Court may decree a divorce.
Section 49 of AMLA sets out a non-exhaustive list of circumstances on proof of which the Court may decree a nullity (fasakh), for example, where the husband has been sentenced to imprisonment for a period of 3 years or upwards, or where the husband was impotent at the time of the marriage and continues to be so, or where the husband has treated the wife with cruelty. The Court may decree a fasakh only after it has received evidence from the wife and at least 2 witnesses.
Invalidity of Marriage
Finally, all Muslim marriages must satisfy and comply with certain rules of munakahat (Muslim law of marriage). The Court may annul any marriage which has been solemnized in breach of these rules and which is therefore invalid under Muslim law.
Effects of Divorce
- Under Muslim law, the 1st divorce between a husband and his wife is referred to as “talak raj’ie”. In a talak raj’ie, the husband may reconcile (rujuk) with the wife within the “waiting period” of 3 months after the divorce (the iddah period) without the need for them to undergo a marriage solemnization (nikah). In such a case, the husband is said to have “revoked” the divorce. The husband and the wife may likewise rujuk if they are divorced for the 2nd time. Sections 102 and 107 of AMLA provide for the registration of a rujuk. After the iddah period, the husband and the wife are not permitted to rujuk but may remarry by undergoing a nikah.
- If a husband and his wife are divorced for the 3rd time, that divorce is known under Muslim law as “talak ba’in kubra”. In a talak ba’in kubra, the husband and the wife cannot rujuk or even remarry. The husband is permitted to remarry the wife only after the wife has, after the divorce, remarried another man and is subsequently divorced from that man after their marriage has been consummated.
- Also, a husband and his wife who have been divorced by the Hakam’s pronouncement of talak or on the ground of fasakh or by way of khuluk are not permitted to rujuk. They may, however, remarry by undergoing a nikah.
- A husband may also divorce his wife for the 1st time by pronouncing a three-talak divorce (talak tiga), for example, by saying: “I divorce my wife by three talak”. In such a case, the divorce that is effected is a talak ba’in kubra.