Every couple that cannot resolve the conflict will choose to dissolve the marriage. There are several types of divorce procedure according to Islamic law in our country, but the four main types of divorce that are always used are Talaq, Khuluk, Fasakh and Li’an.
Types of Divorce
- Talaq : Releasing the marriage bond by using the word divorce, talaq, ta’liq talaq or similar by the husband to his wife. Ta’liq talaq is the wording of the agreement made by the husband after the marriage contract and any violation of the terms of the agreement by the husband gives the wife the right to file a complaint and claim her rights in the sharia court.
- Khuluk : Divorce pronounced by the husband at the request of the wife by obtaining a certain payment given by the wife to the husband with mutual consent.
- Fasakh : Dissolution of marriage by the Syariah Court due to a situation required by the Sharia law. For example, the husband or wife disappears for a period of more than one year, the husband does not provide maintenance for a period of three consecutive months, the husband or wife mistreats the spouse and others.
- Li’an : Accusation of adultery by a husband against his wife.
Divorce Terms
- The marriage was registered in Malaysia in accordance with the Islamic Family Law Enactment;
- The marriage fulfills the Sharia Law; and
- The divorce application must be filed where the husband or wife resides.
Divorce Procedure
- Make a complaint at the Department of Islamic Religion in the district and state your desire to divorce.
- After the complaint is received, the Religious Officer will advise you and your partner to get counseling and the couple must attend a maximum of 3 counseling sessions within 2-3 months.
- If reconciliation cannot be achieved or the husband refuses to attend the counseling session, the Religious Officer will conclude that the counseling process cannot continue and advise you to apply to the Court for a divorce.
- The Religious Officer will give you a reference letter to take to the Syariah Court.
- Take the reference letter to the Syariah Court and register a divorce application under any one of the available divorce options.
- Wives are advised to apply for fasakh for divorce.
- At the same time, you are also advised to make an application for maintenance and custody of any child.
- When the divorce application is registered in the Court, the Court will issue a summons against your husband.
- Your husband will have to attend Court on the date specified in the summons.
- The Court will investigate the divorce application and the agreement by both parties to divorce and grant the divorce if the Court is satisfied that the two parties cannot reconcile.
- For divorce through talaq, if both parties agree, the Court will ask the husband to pronounce talaq in the Court and the Judge will issue the relevant order.
- If the husband does not agree, the Court will refer the parties to the conciliation committee for a reconciliation attempt.
- The wife can challenge the husband’s talaq application if the wife is convinced that the domestic conflict that occurred came from the husband.
Claims During Divorce
Wives can claim their rights during divorce. The three main claims that need to be claimed during a divorce are:-
- Maintenance of wife and children;
- Hadhanah or custody of children; and
- Conjugal property and right of residence.
Maintenance of Wife and Children
The maintenance that the wife is entitled to claim during the divorce process is as follows:
- Nafkah Iddah: Financing expenses given by a husband to his wife as long as the wife is in the period of Iddah.
- Arrears of wife’s alimony (if during the entire period of marriage the husband fails to provide alimony).
- Child support & arrears of child support (if the wife is granted permanent/temporary custody of the child). Wife can also request Mut’ah (consolation payment) from your husband after divorce. The amount of mut’ah will be determined by the Court in accordance with Sharia law. The way to calculate mut’ah is: Daily Maintenance x Duration of Marriage.
Hadhanah or Child Custody Rights
Child custody is the absolute right of a mother during marriage or during and after divorce. In the event of a dispute over the custody of a child during a divorce, the Syariah Court is the competent body to determine the custody of the child by paying attention to the following matters:-
- The child’s welfare;
- The will of the child’s mother and father; and
- The will of the child if he is of an age where he can express his opinion.
Conjugal Property and Right of Residence
Matrimonial property
The ex-wife has the right to claim marital property even if the property was acquired during the marriage only from the husband’s efforts. The court will divide the property taking into account:
- the contribution of your energy to the welfare of the family;
- the contribution of your energy that allows the husband to accumulate wealth; and
- the needs of young children.
Right of residence
A divorced woman has the right to live in the house she lived in when she was married until her husband finds another suitable place to live for her. This right ceases when one of these conditions expires:-
- if the ‘iddah period has ended;
- if the childcare period has ended;
- if the woman has remarried; or
- if the woman has been guilty of committing an act of public lewdness (fahisyah).
Reference’
Ruju’ means return which means returning a wife who has been divorced by talaq raj’ie to the bond of marriage with her husband using certain words during the iddah period.
Ruju’ can only be done if the wife has been divorced by talaq raj’ie which is talaq one and talaq two only. On the other hand, if the wife is divorced by talaq bain (triple talaq), then ruju’ cannot be done.
The ruju’ period starts from the moment the wife is divorced until the end of the iddah period or whichever is the longest iddah period, if the wife undergoes two iddah periods. If the iddah period has ended, then the husband can no longer perform ruju’ except with a new marriage contract and dowry.