Grounds and Effects of Divorce in Muslim Law

This article addresses the multiple types of divorce and grounds for divorce under Muslim law.

Under Muslim law, there are several grounds to dissolve a marriage. These are:

1. The pronouncement of the divorce (talak) by:

1. 1. A husband by way of divorce by redemption (khuluk);
   2. A husband independently of khuluk;
   3. A wife in cases of talak tafweed;
   4. The arbitrator (hakam);
2. The court affirms that the husband has breached a written condition of marriage (taklik);
3. The court decrees an annulment (fasakh);
4. The court finds that the marriage is invalid.

The Administration of Muslim Law Act (AMLA), specifically sections 46(B) and 47(3), state that a husband may apply for divorce or consent to his wife's application for divorce and voluntarily pronounce talak after that.

Additionally, the husband and the wife may agree to divorce by way of khuluk as provided for in section 47(4) of AMLA. This divorce is effected by the husband pronouncing talak once the wife has received payment.

In Singapore, a husband may pronounce the talak, even before the divorce proceedings have begun.

Talak tafweed

Though the Administration of Muslim Law Act does not expressly provide for talak tafweed, this term is recognized under Muslim law. A talak tafweed is performed upon the wife pronouncing the talak: she accepts the husband's delegation to her to perform this right, and pronounce the talak. In such case, the wife pronounces the talak and not the husband.

Talak by hakam

According to section 50 of AMLA, the court may opt to appoint arbitrators (hakams). The court may appoint a hakam each to the husband and wife if:

• A husband does not provide consent to the divorce the wife applied for;
• The wife presents evidence which does not show that the husband has breached any written condition of marriage (taklik); or
• The evidence does not establish any ground upon which the court could decree a fasakh.

If hakams attempt to effect a reconciliation and fail but believe that the husband and the wife should be divorced, the hakams may effect a divorce through a pronouncement of talak by either spouse.

Cerai taklik

Section 48 of AMLA provides for cerai taklik in cases wherein the wife seeks a divorce but the husband does not consent to it. The wife may present evidence that proves the husband has breached a written condition of marriage (taklik). In this case, the court may declare that a divorce has taken place because of the breach.

The evidence must support that the husband left the wife or has not provided maintenance for the wife for a continuous period of four months or more.

Fasakh

Section 49 of AMLA enumerates a list of circumstances of proof the court may take into account to decree a nullity (fasakh). Here are a few examples:

• A husband who has been sentenced to imprisonment for three years or upwards;
• A husband who was impotent during the marriage and continues to be so;
• A husband who has treated the wife with cruelty. The court may declare a fasakh only after receiving evidence from the wife and if at least two witnesses have confirmed these assertions.

Muslim marriages must comply with specific rules of the Muslim law of marriage called munakahat. If there is a breach of these rules, the court may opt to annul a marriage that has already been solemnised. That is because under Muslim law, the marriage is considered invalid.

What are the effects of divorce?

1. The first divorce between a husband and his wife is referred to as talak raj'ie. Here, the husband may reconcile (rujuk) with the wife within a waiting period of three months after the divorce (the iddah period). The husband and wife do not have to undergo a solemnisation ceremony (nikah). In this case, the husband is considered to have revoked the divorce. If the parties get divorced for the second time, they may rujuk, provided under sections 102 and 107 of AMLA. Again, after the iddah period, the husband and the wife cannot rujuk, but may instead remarry by undergoing a nikah.
2. If a divorce happens for a third time, Muslim law refers to it as talak ba'in kubra. It forbids the husband and the wife to rujuk or even remarry. The husband is allowed to remarry the wife only after she has remarried another man after their divorce. The women must first divorce from that other man after their marriage has been consummated.
3. If a husband and his wife have been divorced by the hakam's pronouncement of talak, on the ground of fasakh or by way of khuluk, they are not permitted to rujuk. They may, however, remarry by undergoing a nikah.
4. A husband may also divorce his wife for the first time by pronouncing a triple talak divorce (talak tiga). For example, by saying: "I divorce my wife by triple talak." In such a case, the divorce that is affected is a talak ba'in kubra.