Civil divorce cases for Non-Muslims are usually heard in the Family Justice Court under the Women’s Charter, but when the case involves Muslims, or where the persons were married under Muslim law, only the Syariah Court of Singapore has the authority to hear and make decisions on Muslim divorce cases under the Administration of Muslim Law Act.
Summary of the article
There are four ways in which a Muslim couple may be divorced:
- “Talak” (or “to release/divorce”);
- “Khuluk” (or divorce by redemption, or compensation);
- “Taklik” (or a breach of marriage terms); and
- “Fasakh” (or marriage annulment).
There are five steps in the divorce procedure:
- Filling up an application form (processing time of four to six weeks);
- Mandatory counselling sessions (over a period of two to four months);
- If counselling fails, the case file will then be sent back to Syariah Court. The Applicant will then have to draft, serve and file the necessary documents stating the grounds for divorce (i.e. Case Statement and Originating Summons);
- The next step is mediation between the man and woman;
- If mediation fails, the matter will then be fixed for Pre-Trial Conference for the court to decide on the divorce. At the Pre-Trial Conference, parties will be directed to file an Affidavit of Evidence in Chief (AEIC) and also the Parenting Plan.
Introduction
The number of marriages under the Administration of Muslim Law Act (or “AMLA”) in Singapore hit a record high of 5,954 in 2016 – a 50.9 per cent increase from a decade ago in 2006, when such marriages only numbered at 3,945.
But as more people tied the knot, the number of divorces also rose from 1,667 in 2015 to 1,702 in 2016 – continuing an upwards trend in the number of divorce cases under AMLA that started in 2010.
Based on data from the Department of Statistics, the following observations can be made:
- Among Muslim divorces in 2016, couples who were married for less than 5 years formed the largest share (29.3 per cent), followed by those who were married for 5-9 years (26 per cent).
- For Muslim men, the median age at the time of divorce was 40.7, while for women, it was 37.4 years old.
- The majority of divorces under the AMLA were initiated by women.
- Nearly 70 per cent of Muslim women were the first to file a divorce, while 62.4 per cent of cases under the Women’s Charter were lodged by women.
- In the majority of divorce cases under the AMLA, both genders cited “Infidelity/Extra-Marital Affairs” as the top reason for divorce, while “Financial Problems” and “Desertion” were also cited.
| Top Reasons For Divorce In Cases Under The AMLA (For Year 2016) |
||||
|---|---|---|---|---|
| Gender | Top Reason for Divorce | 2nd Most Common Reason for Divorce | 3rd Most Common Reason for Divorce | 4th Most Common Reason for Divorce |
| Male | Infidelity/ Extra-Marital Affairs | Desertion | Financial Problems | Domestic Violence & Abuses |
| Female | Financial Problems | Desertion | ||
From these statistics, the odds are that a newly-wed couple would encounter irreconcilable differences in the first decade of their marriage. At this point, divorce is no longer a remote possibility, but a process that must be seriously considered.
While most divorce cases are usually heard in Civil Courts under the Women’s Charter, only the Syariah Court of Singapore has the authority under section 35 of the AMLA to hear and make decisions on divorce cases that involve Muslims, or where the persons were married under Muslim law.
According to AMLA, the Act defines a Muslim as a person who professes the religion of Islam.
This includes non-Singaporean Muslims as well, provided they register their marriage with the Registry of Muslim Marriages (or “ROMM”).
If the foreigners are married under Muslim Law, but in a foreign jurisdiction, they can still obtain a divorce in Singapore, subject to certain conditions. Once the Syariah Court determines the issue of jurisdiction, the court then has powers to make similar orders with the foreigner.
In a recent case (February 2017), the Court of Appeal concluded that a Muslim couple which dissolved their marriage in a foreign country can still seek financial relief from the Singapore Civil Court for the division of assets.
What is the AMLA and the Syariah Court?
The Muslim Ordinance of 1957 first established the Syariah Court on 25 November 1958, with the court first housed at Fort Canning Park together with the Registry of Muslim Marriages, before it moved to its current location at Family Link @ Lengkok Bahru in 2009.
Following Singapore’s independence, the Muslim Ordinance of 1957 was repealed by the AMLA in July 1968. The Act, which was co-drafted by the late Minister of Social Affairs, Mr Othman Wok, defines the functions and powers of three key Muslim institutions, namely the Islamic Religious Council of Singapore, the Registry of Muslim Marriages and the Syariah Court.
Since then, improvements were made to the Act in 1999 and 2009 to strengthen the Syariah Court’s powers and enhance its ability to enforce its decisions on disputes relating to betrothal arrangements, marriage, and divorces.
The Powers of the Syariah Court
When the Syariah Court assumes its jurisdiction, or authority, over divorce proceedings, it would also have the power to make decisions related to both local and foreign property owned by either or both persons during the marriage. This is regardless of whether a court in another country also has jurisdiction over the case and the properties in question.
Under Section 51 of AMLA, the Syariah Court is also able to issue orders on behalf of both married and recently divorced female applicants for the provision of maintenance, necessary clothing and suitable lodging. However, in the case of a recently divorced woman, the Syariah Court may only order such maintenance to be paid for the duration of the woman’s “iddah”, or period of waiting.
- Traditionally, the “iddah” for a recently divorced woman is three months (or the length of three consecutive menstrual cycles), while the “iddah” for a pregnant woman should last until she has delivered her baby.
- Additionally, if the husband had divorced his wife, the woman may also claim a consolatory gift, or “mutaah” from him.
- In all these cases, the exact amount for maintenance and “mutaah” will be determined by the Court, after it has taken into account the needs of the ex-wife, the financial means of the ex-husband, the period of marriage, the mode of payment, and in some cases, the circumstances surrounding the divorce. The act of nusyuz (disobedient) on the part of the Wife will have some effect on the amount that is to be paid by the Husband.
However, the Syariah Court has no power to grant personal protection orders (PPOs), or to order one ex-spouse to financially support the other beyond the “iddah” without a justifiable reason. Where necessary, Muslim divorcees may apply to the Family Justice Courts for PPOs and financial support.
The Four Methods for Divorce
Under the AMLA, the Syriah Court of Singapore recognises four methods in which a Muslim couple may be divorced:
- “Talak” (or “to release/divorce”)
- “Khuluk” (or divorce by redemption, or compensation)
- “Taklik” (or a breach of marriage terms)
- “Fasakh” (or marriage annulment)
Generally, only the man may pronounce “Talak” on the woman without having to provide a reason. Even though the right to pronounce of talaq is given to the husband, the Quran cautions that talaq is only permissible twice. If the Husband exceeds the limit, he can no longer reconcile (ruju) during the waiting period (iddah). This triple talaq is known as talaq bida’ah (irregular) when pronounced in one sitting and it is valid in Syariah Law. Nevertheless, the effect of such talaq is debatable among Muslim jurists on whether it will take effect for three divorces or a single divorce. However, the Qur’an provides a solution – the Husband cannot remarry the Wife until she has married another husband and he (the new husband) divorced her.
This process is known as Muhallil, and is strongly discouraged in Islam even though the contract is valid. The purpose of allowing such a practice is to allow the 1st Husband, who might have regretted after three divorces, to repent and begin a new life with the Wife. The same principles apply if the husband pronounces three talaqs in one sitting – even though the present legislation in many Muslims countries, such as Egypt, Jordan and Morocco, provides that such pronouncement amounts to one talaq only. This is to avoid unnecessary hardship, particularly to the wife who has to exercise Muhallil before the parties can remarry. In most cases decided in the Syariah Court involving triple divorces, the parties will try to justify why the divorce should amount to one talaq. As such, the Court discourages the Husband to pronounce 3 talaqs.
Even though the consent of wife is immaterial for a valid divorce, Islamic law strongly encourages the pronouncement of talaq to be witnessed in order to avoid litigation in the future – especially if it pertains to the legality of the divorce.
While this method appears to give the man unequal marital power, Singapore’s legal system for Muslim marriage and divorce compensates for this by providing the other three alternatives of “Khuluk”, “Taklik” and “Fasakh” if the woman wishes to divorce her husband.
For a brief overview of the four methods, check out the infographic below.
Here’s the detailed information on the four methods in which a Muslim couple may be divorced.
| No. | Method | Who May Initiate It? | What Is It? | What Happens Next? |
|---|---|---|---|---|
| 1 | “Talak” (or “to release/ divorce”) | The Husband | • A husband can divorce his wife by pronouncing the talak on her. This means the husband can apply for a divorce without having to prove anything to get one. | Once the husband pronounces talak, the couple can legally file for divorce at the Syariah Court. But since the pronouncement is usually made before they appear in court, the couple would have to appear before the Syariah Court within seven days of the pronouncement to provide details and particulars to the court. After which, they would have to register for the Marriage Counselling Programme before they can initiate divorce proceedings. |
| 2 | “Khuluk” (or divorce by redemption, or compensation) | The Wife | If a Muslim woman wishes to file for divorce, but the man does not agree to it, both sides can agree to a divorce by redemption, or compensation (“khuluk”). A woman who seeks a khuluk may do so because she is not comfortable with a variety of issues related to her husband. For example, she may be concerned that both parties may be unable to comply with the laws of Allah. | The Syariah Court will determine the amount of payment to be made by the wife according to the man and woman's financial situations. The court will then order the husband to pronounce a divorce by redemption. After the wife pays the husband the stipulated sum, the divorce can be registered. |
| 3 | “Taklik” (or a breach of marriage terms) | The Wife | Similar to that of a pre-nuptial agreement, a “taklik” is a written document or agreement made at, or around the time of marriage. Such agreement can also be found at the back of the marriage certificate Both man and woman are free to stipulate terms as part of this ‘contract’ with each other. Failure to honour these written terms would be justifiable reason to allow the woman to leave her spouse. | Once the wife can prove that any of these terms were breached, she would be allowed to leave her husband. |
| 4 | “Fasakh” (or marriage annulment) | The Wife | “Fasakh” refers to a divorce due to the husband being unable to comply with lawful terms (set out within AMLA), or by customary practices. Reasons for the woman to file for divorce in this situation may include such scenarios as: where the man treats the woman cruelly; falls seriously ill; or is found to be impotent, among others. | Once the wife can prove that any of these terms were breached, she would be allowed to leave her husband. The court will require the Wife to bring along 2 male witnesses to give evidence. |
While there are no official statistics in Singapore to indicate which of the four methods is most commonly used to initiate divorce, it is likely that the most widely used methods are the “talak” (or pronouncement of divorce) and “Taklik” (or a breach of marriage terms).
However, in a recent newspaper report that quoted a Muslim women’s rights group in Malaysia, the majority of divorce cases in the country were initiated via the “Fasakh” (or marriage annulment) method – in large part due to a rising trend of marital abuse and domestic violence.
5 Steps To Get a Divorce in the Syariah Court
But whether “talak” has been pronounced or not, the man or the woman may file for a divorce in Syariah Court through the following steps: –
Frequently Asked Questions
In general, how long does it take for a divorce to be finalised in the Syariah Court?
If contested, at least 1 year.
What type of compensation is accepted under “Khuluk” (i.e. divorce by redemption, or compensation), and what is the usual amount?
Normally monetary compensation is accepted. It’s difficult to put a figure to it because the Court will usually assess the amount of payment to be made by the Wife in accordance with the status and means of the parties.
Why is the maintenance for a recently divorced woman only limited to three months under the “iddah”, or waiting period? Why not longer?
Nafkah iddah is a temporary maintenance for the Wife. The Husband would need to pay the Wife a sum of money during the iddah period, and the period of time is calculated according to 3 menstrual cycles of the Wife. However, if the wife is pregnant, the time period will be the entire duration of the pregnancy. This is provided for in the Quran:
“For those of your women who have lost expectation of menstruation, their waiting period is three months. The same also applies to those who don’t have menstruation at all. As for pregnant women, their waiting period ends with delivery of their burden. Allah will create ease for those who fear from Him.” – Al-Talaq/The Divorce 65:4
I have pronounced “talak” (or pronouncement of divorce) to my wife and we have filed the paperwork. But now I have had a change of mind, and I no longer wish to divorce her. What should I do?
Provided that the Husband has pronounced talak once or twice, you can inform the court at the pre-trial conference, or at the hearing, of the parties’ intention to reconcile and file a notice of discontinuance.
What is the average amount that a Wife can claim for mutaah?
Generally, the court will look at the needs of the Wife, and most importantly the means of the husband before considering the amount payable. However, the average is about $2.50 to $3.00 per day.
What happens in the event that one spouse files for divorce and the other spouse fails to turn up for counselling and/or mediation?
When the matter is fixed for Pre-Trial Conference, the Registrar has powers to order for a warrant of arrest to be issued against the latter spouse in order to compel the attendance of that person.
Apart from the grounds of divorce, what are the other ancillary matters which the court will have to determine?
The list of ancillary matters includes – custody, care and control of children, matrimonial assets (HDB flat and CPF monies), nafkah iddah and mutaah, dowry, and marriage expenses.
Need help with a divorce case under Muslim Law?
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This article is written by Roqiyah Begum from Netto & Magin LLC and Tang Chee Seng from Asia Law Network.
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