Quick Reference Guide – Legal Ramifications of Different Types of Divorce Under Muslim Law

Quick Reference Guide – Legal Ramifications of Different Types of Divorce Under Muslim Law
S/N DIVORCE TYPE REVOCABILITY (RUJUK) NAFKAH IDDAH MUTAAH
1 Talak: one-talak (first)
(including a decree of one-talak (first) by court for breach of taklik (condition of marriage) by husband)
(talak raj’i/raj’ie)
Revocable (1) Yes (2) Yes (3)
2 Talak: one-talak (second)
(including a decree of one-talak (second) by court for breach of taklik (condition of marriage) by husband)
(talak raj’i/raj’ie)
Revocable (1) Yes (2) Yes (3)
3 Talak: one-talak (third) (including a decree of one-talak (third) by court for breach of taklik (condition of marriage) by husband) and three-talak uttered at once
(talak bain kubra)
Not Revocable (4),
Cannot Remarry (5)
No (6) Yes (3)(7)
4 Talak wajib (divorce decreed and pronounced by hakam)
(talak bain sughra)
Not Revocable,
Can Remarry (8)
No (9) Yes (3)(10)
5 Khuluk/khula (divorce by redemption)
(talak bain sughra)
Not Revocable,
Can Remarry
No (11) Yes (3)(12)
6 Tafweed/tafwidh (divorce by delegation of right to divorce from husband to wife)
(talak raj’i/raj’ie)
Revocable (13) Yes (14) Yes (3)(15)
7 Fasakh (nullity) on application by wife or husband Not Revocable,
Can Remarry
No (16) Yes/No (3)(17)
  1. This divorce is revocable by way of rujuk within the iddah (waiting) period (3 months from the date of talak pronouncement): Abdul Jabar Bin Johar v Saripah Bte Latiff (2013) 6 SSAR 323; an application to register a revocation of divorce must be made with the Kadi (Registry of Muslim Marriages) within 7 days from the date of revocation: Section 102(2) of Administration of Muslim Law Act (Cap. 3)(“AMLA”); with the consent in writing of the Registrar of Muslim Marriages, a revocation of divorce may be registered by the Kadi within 3 months from the date of revocation: Section 107 of AMLA; the Appeal Board is empowered to extend the time within which an application to register a revocation of divorce may be made to the Kadi under Section 102(2) of AMLA or for the Kadi to register a revocation of divorce under Section 107 of AMLA: Abdul Jabar Bin Johar v Saripah Bte Latiff (cited above)
  2. Nafkah iddah is payable to the wife in all revocable divorces (talak raj’i/raj’ie), unless the wife is found to be nusyuz (disobedient): Aminah Bte Abdullah v Rostali Bin Abd Wahab (2011) 6 SSAR 39, AU v AV (2013) 6 SSAR 266 and BO v BP (2015) 7 SSAR 19; cf. Roslan Bin Baseri v Zauiah Bte Jantan (2011) 6 SSAR 1
  3. Mutaah is payable in all instances of divorce, even if the wife is found to be nusyuz: Siti Zaharah Bte Nabi v Nanwi Bin Salleh (2007) 1 SSAR 127, Jamal Mahammath s/o T Musthafa v Zarina Bte Abdul Majid (2008) 4 SSAR 165, Roslan Bin Baseri v Zauiah Bte Jantan (cited above), AW v AX (2013) 6 SSAR 309, BO v BP (cited above) and BQ v BR (2016) 7 SSAR 36
  4. A wife who is divorced following her husband’s pronouncement of three-talak is irrevocably separated from her husband (talak bain kubra): Dollah Bin Kuddus v Noorainie Bte Rahman (1994) 1 SSAR 42, Joan Canafee (alias Kamimah Bte Kanafi) v Mohamed Sani Bin Tokijan (2011) 6 SSAR 24 and AM v AN (2012) 6 SSAR 202
  5. The parties are not permitted to remarry until the (divorced) wife marries another man and is subsequently divorced by that other man after their marriage is consummated
  6. Joan Canafee (alias Kamimah Bte Kanafi) v Mohamed Sani Bin Tokijan (cited above) and AM v AN (cited above); cf. it has been held that on a “case- to-case basis” nafkah iddah can be awarded to a wife who has been divorced by three-talak although this is not to be taken as a general rule in three-talak divorce cases: BQ v BR (cited above); pursuant to Section 51 of AMLA, the Syariah Court may in any event award maintenance to a wife generally and not specifically as the execution of her husband’s nafkah iddah obligation upon divorce: BM v BN (2014) 7 SSAR 1
  7. Joan Canafee (alias Kamimah Bte Kanafi) v Mohamed Sani Bin Tokijan (cited above) and AM v AN (cited above)
  8. A talak  which is decreed and pronounced by the hakam for the husband appointed on the ground that there is shiqaq (dispute which cannot be resolved) between the husband and his wife effects a talak bain or irrevocable divorce between the parties for which there is no rujuk: Azman Bin Abdul Rani v Rahmah Bte Ramli (1998) 1 SSAR 93
  9. Surinah Bte Sapar v Abdul Mutalib Bin Abdul Majeed (2011) 6 SSAR 11; the majority of Muslim jurists hold the view that a husband is only obliged to maintain his wife so long as she remains his wife; or if she is observing iddah of a revocable divorce: Najibah Mohd Zain et. al., Islamic Family Law in Malaysia (Sweet & Maxwell Asia 2016) Chapter 5 “Maintenance (Nafaqah) of Wife and Children”; pursuant to Section 51 of AMLA, the Syariah Court may in any event award maintenance to a wife generally and not specifically as the execution of her husband’s nafkah iddah obligation upon divorce: BM v BN (cited above)
  10. Surinah Bte Sapar v Abdul Mutalib Bin Abdul Majeed (cited above), BM v BN (cited above)
  11. Siti Zaharah Bte Nabi v Nanwi Bin Salleh (cited above) and AW v AX (cited above); the majority of Muslim jurists hold the view that a husband is only obliged to maintain his wife so long as she remains his wife, or if she is observing iddah of a revocable divorce: Najibah Mohd Zain et. al., Islamic Family Law in Malaysia (cited above) Chapter 5 “Maintenance (Nafaqah) of Wife and Children”; pursuant to Section 51 of AMLA, the Syariah Court may in any event award maintenance to a wife generally and not specifically as the execution of her husband’s nafkah iddah obligation upon divorce: BM v BN (cited above)
  12. Siti Zaharah Bte Nabi v Nanwi Bin Salleh (cited above) and AW v AX (cited above)
  13. AQ v AR (2012) 6 SSAR 235
  14. Hosairi Bin Kalil v Zaliha Bt Othman (2009) 2 SSAR 187 and AQ v AR (cited above)
  15. Hosairi Bin Kalil v Zaliha Bt Othman (cited above) and AQ v AR (cited above)
  16. The majority of Muslim jurists hold the view that a husband is only obliged to maintain his wife so long as she remains his wife, or if she is observing iddah of a revocable divorce: Najibah Mohd Zain et. al., Islamic Family Law in Malaysia (cited above) Chapter 5 “Maintenance (Nafaqah) of Wife and Children”; pursuant to Section 51 of AMLA, the Syariah Court may in any event award maintenance to a wife generally and not specifically as the execution of her husband’s nafkah iddah obligation upon divorce: BM v BN (cited above)
  17. Mutaah is not payable to the wife in cases where the wife has obtained fasakh (nullity) because her husband is unable to maintain her or pay her dower due to poverty, or by reason of her husband’s insanity or impotence or because her husband is missing. Mutaah is also not payable to the wife in cases where the husband has obtained fasakh due to a defect on the part of the wife, such as muscle growth on the private part of the wife (ratq) or bone growth on the private part of the wife (qarn) or where the wife has become an apostate. In other cases of fasakh brought about by the husband’s fault, such as where the husband has deliberately refused to maintain his wife, or where the husband has become an apostate, or where the husband has treated the wife with cruelty, mutaah is payable to the wife: Siti Zaharah Bte Nabi v Nanwi Bin Salleh (cited above) and Najibah Mohd Zain et. al., Islamic Family Law in Malaysia (cited above) Chapter 11 “Consolatory Gift (Mutaah)
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