Divorce under Islam
Azah* fell in love with her husband, Rashid* when she was in college. He courted her and after two years, they got married. Azah is Chinese by ethnic origin, and she converted to Islam. After a few years into their marriage, Azah gave birth to a son. Although they were both happy initially, Rashid became more inattentive to the family after some time. He frequently scolded her if the baby was crying and began to come home late after work. Azah also works in the same place as her husband, although they are in different shifts.
One afternoon, she did not feel well and returned home early from work. She heard odd sounds coming from her bedroom. Worried that her son or Rashid might be ill, she rushed upstairs to check. To her shock and disbelief, she caught Rashid in bed with another woman.
She then packed her things and went to her mother's house with her son. When Rashid contacted her, he told her that he wants to marry the woman as a second wife. Azah still loved him. But after considering the idea of polygamy in her marriage with Rashid, Azah decided that she could not accept it as part of her life. She spoke to Rashid about her feelings and tried to convince him not to do so. But Rashid is firm on his decision. He told her that he is resolute in having a second wife whether she agrees to it or not. In that case, she asked him for a divorce, but he refused.
When she spoke to her mother and asked for advice, her mother reminded her about her son, and what would happen to him. Azah is not familiar with matters of divorce and custody under Syariah Law. What are her options?
Under Syariah Law, there are four main types of divorce. If Azah wants a divorce, she can ask Rashid to make an application to pronounce talaq in court. This is the first form of divorce under Syariah law, which is based on mutual agreement between both parties. Rashid is allowed to pronounce talaq for a maximum of three times. After the first and second pronouncement, Azah and Rashid can choose to reconcile. However, this must be within three months, known as the iddah** period. Afterwhich, they are not allowed to do so. They are also not allowed to reconcile if Rashid pronounces the third talaq.
Also, Azah can apply for khulu' or cerai tebus talaq (divorce by redemption) from her State Syariah Court. This is where she pays him a certain amount of money to redeem him for the dowry that was paid to her when they were married. How much money depends on an amount agreed by both parties, or if no agreement is reached, the Kadi (religious officer) will assess the amount depending on her status and means. However, she can only apply for khulu' if both parties agree to a divorce.
If Rashid is insistent on disagreeing, Azah can still apply for a divorce to the Syariah court. The two types of divorce not based on mutual agreement are are:
1. Cerai Taqliq
If you can prove to the court through witnesses and oath that your husband has broken conditions set in the marriage contract, you can apply for Cerai Taqliq from the Syariah Court. Examples of conditions are providence of maintanence, desertion or domestic violence. If the judge is satisfied that your husband has indeed broken the marriage contract, the court will grant you the divorce.
2. Cerai Fasakh
You can apply for fasakh (dissolution of marriage by order from the Court) from your State Syariah Court if you can prove either one of these conditions:
- Your husband has treated you cruelly (e.g. been violent to you either physically or mentally, associated with prostitutes, forced you into immoral behaviour, obstructed your religious obligations, mistreated your property or according to Syariah law treated you unequally compared to his other wife/wives);
- Your husband has not maintained you for at least three months;
- Your husband has been sent to prison for three years or more;
- Your husband has left home and not been contactable for at least one year;
- Your husband is impotent or has refused sexual intercourse after at least four months of marriage, or for at least one year;
- Your husband has been insane for at least two years;
- Your husband is suffering from leprosy, vitilago or a sexually transmitted disease;
- Your consent to marriage was given by force, mistake or unsound mind; or
- You have since marriage, has a mental disorder which renders you unfit for marriage.
Always check first with your nearest Jabatan Agama Islam, Legal Aid Bureau or any practicing Syariah lawyer for differences in State Muslim Family Law before proceeding. For example, cruelty is not a ground for fasakh in Kelantan, Perak, Kedah and Pahang.
You will first have to file a complaint with the Jabatan Agama Islam (Muslim religious department) and state that because of problems within the marriage, you wish to do have a divorce.
The religious officer will then probably advice you to go for marriage counselling with your husband. You have a right to refuse marital counselling if you believe it will not help. If you think so, be firm about your decision. If you have any evidence to this effect, in example police reports on domestic violence, bring them with you.
However, take note that generally at the Syariah Court, you are asked for a letter from the religious department stating that you have undergone at least one counselling session.
If you wish to go for counselling, you will be given an appointment letter from the department. The religious officer will try to reconcile you and your husband during the appointed counselling sessions. If reconciliation is impossible, the religious officer will issue a letter stating that. The counselling period would take around 2 - 3 months.
Bring the letter with you to the Syariah Court and register your application for divorce. At the same time, you can also apply for any maintenance and custody of the children, although these matters will only be heard after the divorce case is decided. Generally, if the child is younger than seven, custody will be given to the mother. If s/he is older, it will be decided based on the best interest of the child.
In application for divorce, maintenance and custody to the Syariah Court, you are encouraged to appoint a lawyer, as the Syariah judge generally prefers this.
If you need further information or clarification, contact the Legal Aid Bureau, Legal Aid Centre or a women's organisation.
*Names changed to protect WAO's client's confidentiality.
Women's Aid Organisation
Fortnightly Column by WAO on Sunday Mail (Reprinted with permission from Sunday Mail)