Typical Issues And Claims In Syariah Court Divorce Proceedings

The following article covers the common issues and claims which arise in divorce proceedings in the Syariah Court.

Divorce

Under Muslim law, a marriage may be dissolved in one of the following ways:

1. By the pronouncement of divorce (talak):
   1. by the husband (via khuluk or independently of khuluk);
   2. by the wife (talak tafweed); and
   3.  by the arbitrator (hakam); or
2. By the husband’s breach of any written condition of marriage (taklik); or
3. By annulment (fasakh) on proof of certain facts (e.g. the husband’s incarceration or the husband’s impotence or the husband’s cruelty, etc.); or
4. By reason of invalidity of the marriage.

Nafkah Iddah And Mutaah

Upon divorce, the wife is entitled to nafkah iddah and mutaah. Nafkah iddah is the wife’s maintenance during the 3 months after the divorce during which she must observe certain restrictions, e.g. during this period, the wife cannot remarry. Mutaah is a consolatory gift from the husband to the divorced wife. The total amount of mutaah to be paid is computed based on the number of days the marriage had lasted. The amounts for both nafkah iddah and mutaah are determined primarily upon a consideration of the husband’s means.

Division Of Matrimonial Home

Typically, the matrimonial home will be ordered to be sold in the open market and the nett proceeds of the sale are divided between the husband and the wife in such proportions as the Court thinks just and equitable. The Court may also order the sale or transfer of the matrimonial home to either the husband or the wife. In certain cases, the matrimonial home (if it is an HDB flat) may be ordered to be surrendered to the HDB.

In determining the husband’s and the wife’s shares of the nett proceeds of the sale of the matrimonial home, the Court will consider several factors, including the husband’s and the wife’s financial and non-financial contributions towards the purchase of the property and towards the marriage and the family, the husband’s and the wife’s financial means, earning capacity, etc.

Custody Of Minor Children

Muslim law provides specific rules which govern the custody of a minor child (hukum hadhanah) upon the divorce of his or her parents, e.g. a child below the age of 7 years and who has not attained the age of maturity will generally be placed in his or her mother’s care, whereas an older child will be asked with which parent he or she wishes to live with.

There are many other such rules, but all these rules are subject to the predominant consideration of the child’s welfare or best interest. Apart from the issue of with which parent a minor child will live with after his or her parents’ divorce (care and control), the Court will also decide on the related issues of custody (the right to make decisions on the child’s education (including religious education), healthcare, etc.) and access (the right of the non-custodial parent to visit or be with the child).

Division of Other Matrimonial Assets

Other matrimonial assets include savings in bank accounts, shares, insurance policies, CPF monies, motor vehicles, etc. Essentially, these are assets that had been acquired by the husband or the wife or by both of them during the marriage. An asset which is a gift, or which had been acquired by way of inheritance is excluded unless the asset is the parties’ matrimonial home.

In a divorce, the Court is required to divide these other matrimonial assets between the husband and the wife in a just and equitable manner. Many factors are considered in that division, including the husband’s and the wife’s financial and non-financial contributions during the marriage, their financial means, earning capacity, the needs of the children of the marriage, etc.

Dowry and Marriage Expenses

The wife may also claim for unpaid dowry (maskahwin or mahr) and unpaid marriage expenses. The relevant proof must be produced in Court.