Application of Muslim Law
A Muslim or Islamic divorce has different considerations and procedures as compared to a divorce from civil marriage.
Under section 35 of the Administration of Muslim Law Act (AMLA), the Syariah Court in Singapore has the jurisdiction to hear and determine certain cases that concern marriage, divorce, and other related matters.
These cases are where all parties to the application are Muslims or where the parties were married under the provisions of the Muslim law. Hence, divorce applications for Muslim marriages will be heard by the Syariah Court.
This is in contrast to a divorce for civil marriage, where the Family Court, which is part of the State Courts, hears divorce applications. The Syariah Court will apply Muslim law to the cases that it hears.
Requirements for Muslim Divorce
The types of divorce from a Muslim marriage are different, and the appropriate method to be used depends on factors such as whether it is the husband or the wife who is seeking the divorce.
These are explained below.
Talak
There is the concept of talak, an Arabic word meaning “to release” or “to divorce”.
If the husband is seeking the divorce
A husband can divorce his wife by pronouncing the talak. Practically, it allows the husband to apply for a divorce as of right, meaning that he does not have to prove anything to get one.
Applying for Divorce at the Syariah Court
With effect from 22 October 2018, a husband has the additional option of applying to the Syariah Court for a divorce as a plaintiff without pronouncing the talak.
If the wife is seeking the divorce
In contrast, the wife who seeks a divorce will be required to prove at least one of following:
- Khuluk;
- Cerai taklik (Breach of taklik); or
- Fasakh.
The exception is if she obtains the consent of her husband, upon which the Court shall cause the husband to pronounce a divorce.
Khuluk (divorce by redemption or compensation)
The parties can agree to a khuluk, which refers to the wife’s right to seek divorce from her husband.
In this process, the talak is requested by the wife and is granted by the husband upon the wife’s paying him a sum of money or an amount in kind (compensation/redemption). The quantum of which is assessed by the Court in accordance with the status and means of the parties.
A wife who seeks a khuluk does so usually because she is not comfortable with a variety of factors relating to her husband.
For example where there is concern on the part of both parties of their inability to comply with the Syariah Law.
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Cerai taklik (Divorce by breach of marriage condition)
A taklik is a conditional marriage stipulation. An example of such a stipulation would be the conditions cited by the husband upon contracting a marriage, and which can be found in the Marriage Certificate.
In her application for divorce, the wife will have to show that the husband breached the taklik.
Where there is a written taklik made at or after the marriage, the Syariah Court will examine the written taklik. It will then confirm the divorce if it decides that the divorce is valid in accordance with Muslim law.
The divorce will be registered once the parties have paid the necessary fees.
Fasakh (Annulment of Marriage)
Finally, fasakh means to annul a marriage. Section 49(1) of the AMLA provides a non-exhaustive list of grounds on which a marriage may be annulled. Some of which include where the husband:
- Has failed to provide his wife with maintenance for 3 months;
- Has been jailed for at least 3 years;
- Treats her with cruelty (e.g. by assaulting her or cohabiting with another woman);
- Was impotent at the time of marriage, and has continued to be so; or
- Is insane
The Procedure for Muslim Divorce
Filing an application for divorce
An application for divorce is filed with the Syariah Court. As part of the registration process, the party seeking divorce has to submit copies of the following documents:
- Marriage certificate;
- The parties’ identification cards (front and back) or passports; and
- Their children’s birth certificates (if there were children to the marriage).
It is important to note that parties are required to be domiciled, or habitually resident in Singapore for at least 3 years before they can file for divorce at the Syariah Court. Unless proven otherwise, a person will be presumed to be domiciled in Singapore if he is a citizen of Singapore.
Counselling and parenting programme
After the registration form is processed, the Syariah Court will require parties to attend counselling under the Marriage Counselling Programme.
Such counselling is provided with the aim of saving the marriage, and must be attended by the parties before they are able to commence divorce proceedings.
If the parties have at least one child under 21, they must also attend a parenting programme.
This parenting programme will guide the parties on preparing a parenting plan on how such children are to be cared for, and their living arrangements, with their best interests in mind.
Parties must attend counselling (and the parenting programme, if required to) within the 6 months before the application for divorce is filed.
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If there is no resolution and either party wishes to proceed with the divorce, the filing party will be given a date to file the Originating Summons and a Case Statement.
If both parties have agreed on the parenting plan, then they will both have to complete and sign a Agreed Parenting Plan Form.
However if both parties are unable to agree on the parenting plan, then the party filing for divorce will have to complete and submit a Proposed Parenting Plan Form together with the originating summons.
The parenting plan templates are available on the official Syariah Court website.
The parties will then be directed to attend a mediation at the Syariah Court.
Note: even after parties have completed the Marriage Counselling Programme, the Syariah Court may refer the parties for further counselling, or to a family support programme, at a later stage of their divorce proceedings if it deem this to be in the interests of the parties or their children.
Mediation
At the mediation, the divorce and ancillary issues such as custody of children, division of matrimonial property and payment of nafkah iddah and mutaah (explained below) will be discussed.
If there is an agreement at the mediation, the court will grant a divorce following the terms of the agreement.
If no agreement is reached, the Syariah Court will fix the proceedings for a Pre-Trial Conference where further directions will be given. After that, the case goes on to the trial.
The court may also decide to refer the case to up to 2 hakam (arbitrator) who has been selected by the divorcing parties on the direction of the court, on behalf of the husband and wide respectively.
Pre-trial conference and trial
Before the trial, the Syariah Court will fix the date for a Pre-Trial Conference to give the parties further directions on what to expect during the trial.
Both parties and their lawyers (if they have engaged lawyers) will be required to attend the trial.
During the trial, the judge will hear from both sides regarding their wishes for the divorce and ancillary matters, and make a ruling on his decision.
At the end of the trial, the Syariah Court will issue a date for parties to collect their Divorce Certificate and Decree.
Child custody
If the Syariah Court is required to decide on matters of child custody, it will consider all circumstances of the case. Which parent will be granted custody will depend on factors such as:
- The parents’ ability to provide for the child;
- Recommendations of social support family agencies; and
- The child’s age and wishes.
The Syariah Court may appoint a child representative to represent the interests of a child during discussions relating to the child’s custody and welfare.
It may also appoint a registered medical practitioner, psychologist, counsellor, social worker or mental health professional to examine and assess the child.
This is for the purposes of preparing expert evidence for use in proceedings involving the child’s custody or welfare.
Maintenance
Maintenance is financial support paid by one party to a marriage to the other party after divorce. It comprises of both spousal and child maintenance.
Unlike a civil divorce in the Family Justice Courts, the Syariah Court will not make any maintenance order for a wife or the children. Instead, 2 forms of financial provision may be granted to the wife. These are:
- The nafkah iddah. This is maintenance for the period during which Muslim law forbids a divorced woman from remarrying (typically three menstrual cycles); and
- The mutaah. This is a “consolatory gift” upon divorce. The mutaah sum is determined based on a formula of a specific sum of money per day. For example, the Syariah Court may require a payment of $3 multiplied by the number of days the marriage lasted, or order the payment of a certain lump sum.
The wife will propose the sums to be paid for nafkah iddah and mutaah, and the Syariah Court will determine if these sums are appropriate after considering factors such as her husband’s financial position. For more information, refer to our article on obtaining nafkah iddah and mutaah in Singapore.
The wife may also seek maintenance for herself by filing a civil application for maintenance from her husband at the Family Justice Courts. She may also seek maintenance orders for the parties’ children.
Appeal
If either party is not satisfied with the Syariah Court’s decision on the divorce or any ancillary matter, they may file an appeal with the Appeal Board (located at Islamic Religious Council of Singapore) within 30 days from the date of the decision.
Parties are advised to seek legal advice on whether they should file an appeal before doing so.
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If you have yet to file for a divorce, or require more information on the process of obtaining a divorce from a Muslim marriage in Singapore, you may wish to consult one of our Muslim divorce lawyers.
This article was re-published with permission from SingaporeLegalAdvice. The information provided above does not constitute legal advice. You should obtain specific legal advice from a lawyer before taking any legal action. Although we try our best to ensure the accuracy of the information on this website, you rely on it at your own risk.
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