Muslim Divorce – An Overview of Divorce in Islam and the Divorce Procedures for such Divorce in Singapore
1. Overview of Muslim Divorce

Singapore’s Syariah Court derives jurisdiction and power from the Administration of Muslim Law Act (AMLA). AMLA provides for various aspects of Muslim life in Singapore for the 15% of Singapore’s resident population that are Muslim (as of 2010 population census).

For example, AMLA provides for the establishment of key Muslim institutions such as the Majlis Ugama Islam Singapore (MUIS) to administer the religious life of Muslims, the Registry of Muslim Marriages and the Syariah Court to deal with Muslim family law disputes. 

2. Muslim Marriages in Singapore

Marriages between Muslim couples are registered separately from civil marriages (i.e. all other non-Muslim marriages) at the Registry of Muslim Marriages. Statistically, there are more Muslim divorces per capita in Singapore; almost 30% of divorces occur in Muslim marriages although Singapore is only 15% Muslim. One reason for this could be that unlike civil marriages, there is no requirement that a Muslim couple be married for at least 3 years before they can file for divorce.

It is widely known that Muslim men are allowed to have more than one wife – such a marriage is called a polygynous marriage. Muslim polygyny is permitted in both legal and religious spheres, but there are certain conditions to be fulfilled before a Muslim man is allowed to marry a second wife in Singapore.

He must be able to provide for the financial, physical and emotional well-being of his wives, have a currently good marriage (he cannot marry a second wife merely because his first marriage was not ideal) and must have specific reasons for having to marry a second wife.

The Registry of Muslim Marriages would decide whether or not to allow the second marriage, and the main criteria for this is that the second marriage be beneficial to all parties (husband, first wife, second wife). This is quite a high standard to meet, which explains why Muslim polygyny is rare in Singapore.

3. Jurisdiction of The Syariah Court

According to Section 35(2) of AMLA, the Syariah Court deals with “actions and proceedings in which all the parties are Muslims or where the parties were married under the provisions of Muslim law”. This clearly includes Muslim marriages and divorces.

The Syariah Court also has jurisdiction over Muslim marriages where one party has renounced Islam during the course of marriage, and marriages that were first registered under the Women’s Charter and subsequently registered under Muslim law at the Registry of Muslim Marriages after one party converted to Islam.

Before acquiring jurisdiction, the Syariah Court must first determine that the parties involved are in fact Muslim. This means that parties cannot merely claim to be Muslim. Note also that the location of marriage does not in itself indicate that a marriage was Muslim. The Syariah Court must look at the substance of the marriage rather than its form to decide whether the marriage conformed to the norms of Muslim law.

When the Syariah Court assumes jurisdiction over divorce proceedings, it would also have jurisdiction to make orders relating to matrimonial properties situated both within and outside Singapore. This is regardless of whether a court in another country also has jurisdiction over the case and the matrimonial properties. However, the Syariah Court has no power to grant personal protection orders (PPOs) or to hear applications for maintenance. These matters are dealt with by the Family Justice Courts.

4. Initiation of Divorce by Husband

Loosely speaking, it is possible to analogize a Muslim marriage to an employment contract where the wife is the “employer” and the husband the “employee”. This is because the wife does not have many duties to fulfill in the marriage except for the main duty of having sexual relations with her husband, while the husband has comparatively more duties to fulfill such as having to maintain his wife and provide for the family. Thus, as the “employer”, the wife would need to prove breach on the part of the “employee” husband before “firing” him. On the other hand, the husband as “employee” need not prove breach and can decide to “quit” whenever he wants.

When a Muslim husband wishes to divorce his wife, he need only pronounce talak on her. Talak means “divorce” in Arabic. The husband need not prove that the wife has done anything wrong; he is allowed to divorce her simply because he no longer wishes to remain married to her. Once the husband pronounces talak, the parties can legally file for divorce at the Syariah Court. Usually, the statement is pronounced outside court, so both parties would have to appear before the Syariah Court within seven days of the pronouncement to provide details and particulars to the court. Thereafter, they would have to register for the Marriage Counselling Programme before they can initiate divorce proceedings.

Note that the husband’s intention in pronouncing the talak is taken into consideration by the Syariah Court. The statement must have been clear and unequivocal, with a real intention of divorce. The husband may divorce his wife three times, and is allowed to take his wife back after the first two pronouncements of talak. If the husband pronounces talak three times, then according to Islamic law he would no longer be allowed to revoke the divorce or to remarry his wife again. The only exception to this would be if his wife marries another man bona fide (“in good faith”). The husband would be allowed to remarry the wife again after the breakdown of this supervening marriage, even if he had previously pronounced talak on the wife thrice.

5. Initiation of Divorce by Wife

As stated above, the wife is the “employer” in the employment contract analogy. This means that she would have to provide reasons before filing for a divorce, like how an employer would usually need to provide reasons before sacking an employee. There are three ways for a Muslim woman to initiate divorce: khuluktaklik and fasakh.

If a Muslim wife wishes to file for divorce and the husband consents to it, the Syariah Court would request for the husband to pronounce divorce (talak) instead. If the husband does not agree to pronounce divorce, parties can agree to a divorce by redemption (khuluk). For this form of divorce, the Syariah Court will assess the amount of payment to be made by the wife in accordance with the status and means of the parties and will order the husband to pronounce a divorce by redemption. After the wife pays the husband the stipulated sum, the divorce can be registered.

Taklik refers to a divorce due to the husband’s breach of express terms. These express terms refer to terms that are stated in a written taklik made at the time of marriage or after marriage (e.g. the Muslim marriage document). Parties are free to stipulate terms as part of their “contract” with each other. Once the wife can prove breach of any of these terms, she would be allowed to leave her husband.

Fasakh refers to a divorce due to the husband’s breach of implied terms. These terms are either implied by law (terms stipulated within AMLA) or implied by custom. For example, any desertion, cruelty, serious illness or impotence on the husband’s part provides the wife with reason to file for divorce. The husband’s failure to perform marital duties for a period of one year also constitutes breach. Additionally, according to Islamic law, the husband is required to provide maintenance for the wife. This maintenance includes things that are seen (zahir) such as food, clothing and shelter as well as things that are unseen (batin) such as sexual relations. A wife may divorce her husband if he has failed to provide maintenance for her for a period of 3 months, or if he has been sentenced to imprisonment for a period of 3 years or more.

If a Muslim wife is unable to invoke taklik, fasakh or khuluk (where the husband refuses to agree to a divorce by redemption) but still wishes to file for divorce, parties would then have to go for arbitration according to the principles of the Quran. The Syariah Court can appoint hakam (two arbitrators) at its discretion in family disputes. The two appointed hakam are to act for the husband and wife respectively on the issue of divorce. There may be a preference for close relatives of the parties who have knowledge of the circumstances of the case, which is consistent with the following Quranic verse:

If you fear breach between them (husband and wife) appoint two arbiters, one from his family, and the other from hers. If they wish for peace, Allah will cause their conciliation. For Allah has full knowledge and is acquainted with all things.

The appointed hakam will conduct the arbitration in accordance with directions of the Syariah Court and according to Muslim law. The hakam will endeavor to agree and to help the parties reconcile. However, if reconciliation is not possible, the hakam may obtain authority from their principals (the husband and wife) and thereafter exercise their power to grant a divorce.

6. Divorce Procedures

The first step in the process is for the initiating party to fill in and submit a registration form. The registration process takes about 4 to 6 weeks. Thereafter, parties would be required to attend mandatory counselling for a period of 2 to 4 months to ensure that they are certain about going forward with divorce procedures.

Should counselling fail, the Syariah Court will arrange for the initiating party to file a case statement that sets out the ground for divorce that the party is relying on. The Syariah Court would then prepare an Originating Summons (OS) and proceed to serve it on the other party as defendant. Note that the OS can be filed by either party in person without the help of lawyers, and that the court would assist in serving the papers on the defendant. Thus, it is relatively uncomplicated to initiate divorce proceedings at the Syariah Court without having a lawyer.

After the OS is filed and served, mediation is the first court session for Muslim parties applying for divorce at the Syariah Court. This means that parties must undergo mediation before the case proceeds to a hearing. At the mediation, parties would discuss the divorce and ancillary matters. Where parties agree, the mediation agreement would be recorded by the mediator and can later be converted into a consent order for divorce. After a waiting period of 3 months, a divorce certificate would be issued and parties would be legally divorced.

Where mediation fails and parties cannot reach an agreement, the case would proceed to pre-trial conference(s) where the Syariah Court would order for documents to be produced and for each party’s pleadings to be filed. During the pre-trial conferences, a hearing date would also be set. At the hearing, the Syariah Court would hear both the issues of the divorce and the ancillary matters simultaneously. After the hearings have been completed, the Syariah Court would issue a court order stating its decision on the divorce and ancillary matters.

Note that at any point during Syariah Court divorce proceedings, parties may agree to have questions of custody, access to children or division of matrimonial assets to be moved from the Syariah Court to the Family Justice Courts. Even in the absence of agreement by both parties, the Syariah Court may also grant permission in appropriate cases for one party to raise these matters at the Family Courts. However, the parties must first undergo counselling at the Syariah Court before the matters can be transferred to the Family Court.

7. Ancillary Matters

The Syariah Court applies similar principles as the Women’s Charter when dealing with the issue of matrimonial property. As for custody, care and control of children, the Syariah Court applies the main principle of “the best interests of the child”, which is the same principle applied by the Women’s Charter and the Guardianship of Infants Act (Chapter 122 of Singapore).

However, Muslim principles dealing with divorce maintenance are vastly different from that of the Women’s Charter. When the Syariah Court grants a divorce between a Muslim couple, it does not make any maintenance order for the wife and children. To obtain a maintenance order, they would need to go to the Family Justice Courts (where the wife can seek maintenance from the husband on behalf of the child, or where the child is above 21 can seek maintenance from his parents). Instead of ordering maintenance for the wife, the Syariah Court would make two forms of financial provision for the Muslim wife: nafkah iddah and mutaah.

Nafkah iddah is a temporary form of maintenance for the wife that provides for the possibility of reconciliation. The husband would need to pay the wife a sum of money during this period, where the period of time is calculated according to 3 menstrual cycles of the wife. Thus, the period of iddah is usually 3 months, but it may vary according to the wife’s menstrual cycle. If the wife is pregnant, the entire duration of the pregnancy would also be added to the usual period of 3 months since there would be no menstrual cycle during the pregnancy. Both parties are not allowed to marry anyone else during the period of iddah, and they may revoke their divorce and resume marital relations without having to remarry each other during this period. In determining the sum to be paid as nafkah iddah, the Syariah Court will consider both the husband’s means and the wife’s needs.

Mutaah refers to a consolatory gift that is paid from the husband to the wife upon divorce. There is no fixed figure for the calculation of mutaah; it depends on the facts and circumstances of each case. For example, the length of the marriage and the status of the parties may have a bearing on the final decided sum. Usually, the mutaah sum is decided based on a formula comprising of a certain number of dollars per day (e.g. $5 per day) multiplied by the number of days of the marriage. Alternatively, the court may order a specific lump sum to be paid to the wife in appropriate cases. The mutaah sum can be enforced in the Family Justice Courts, and payment is usually offset from the sale proceeds of the parties’ matrimonial home.

8. Enforcement of Syariah Court Orders

AMLA was amended in 2009 to ensure that Muslims can enforce orders made by the Syariah Court. Syariah Court orders are now treated as District Court orders for the purpose of enforcement. Thus, Muslim parties or parties married under Muslim law can lodge a Magistrate’s Complaint for breach of Syariah Court orders. Thanks to this amendment, Syariah Court orders will no longer need to be registered in a District Court before they are enforceable.

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