Introduction
There are specific issues and claims that might arise in divorce proceedings in the Syariah Court. This article gives an overview on some of the common matters that may occur. Keep reading to learn more about what you should know before starting the divorce proceedings in Syariah Court.
Divorce
There are four ways to dissolve a marriage under Muslim law:
- The pronouncement of divorce (talak) may arise:
- by husband (via khuluk or independently of khuluk);
- by wife (talak tafweed);
- by arbitrator (hakam);
- The breach of any written condition of marriage (taklik) by the husband;
- Annulment (fasakh) on proof of specific facts (e.g., the husband’s incarceration or the husband’s impotence or the husband’s cruelty, etc.); or
- The invalidity of the marriage.
Nafkah iddah and mutaah
Upon divorce, the wife has the right to nafkah iddah and mutaah. Nafkah iddah is the wife's right to maintenance during the three months after the separation. During this period, she has to observe certain restrictions. For instance, the wife cannot remarry. On the other hand, mutaah is a consolatory gift that the wife receives from her divorced husband. The total amount of mutaah depends on how long the marriage lasted, taking into account the number of days of marriage. The amounts of nafkah iddah and mutaah to be paid are determined after the husband’s means are taken into consideration.
Division of the matrimonial home
Typically, the court will order the spouses to sell their marital home in the open market. The husband and wife will then divide the net proceeds of the sale in the proportions the court considers just and equitable. The court may order the sale or transfer of the marital home to either to the husband or the wife. In some instances, the court may order the parties to surrender the marital home to the HDB, particularly if it is an HDB flat. The court will take several factors into consideration when determining the husband’s and the wife’s share of the net proceeds of the marital home. It takes into account the husband’s and wife’s financial and non-financial contributions towards buying the property, but also their contributions to the marriage and the family, both parties' financial means, their earning capacity, etc.
Custody of minor children
The custody of minor children is regulated under Muslim law. It has specific rules that govern the custody of a minor child (hukum hadhanah) upon the divorce of his or her parents. For example, a child below the age of seven and who has not attained the age of maturity will generally stay with the mother. On the other hand, the court will ask an older child which parent he or she prefers to live with. Many other rules regulate child custody, but all of these are subject to the predominant consideration of the child’s welfare or best interest. Apart from the issue of which parent a minor child will live with after the divorce (care and control), the court will also rule on the related issues:
- The right to make decisions on the education of a child (as well as decisions on religion, healthcare, etc.);
- The non-custodial parent's access to the child (the right to visit or be with the child during a determined period).
Division of other matrimonial assets
The court also decides on the division of other marital assets. This includes any savings in bank accounts, shares, insurance policies, CPF monies, motor vehicles, etc. These assets must have been acquired by the husband, wife, or both during the course of the marriage. An asset considered a gift, or that had been acquired by way of inheritance is excluded--unless the asset is the parties’ marital home. In a divorce, the court has to divide other marital assets among the parties in a just and equitable manner. There are many factors the court takes into consideration in the division. As mentioned earlier, the Syariah Court will take into account both parties' financial and non-financial contributions during the marriage, their financial means, the needs of the children, the spouses' earning capacity, etc.
Dowry and marriage expenses
The wife has one more right to claim. She may claim for unpaid dowry, called maskahwin or mahr, as well as payable marriage expenses. The court will base its decision on this matter on the relevant proof that the wife produces.
