Saadiah Din, Malaysia
As a practitioner in the civil courts for six years before practicing in the Syariah courts, Saadiah Din found that divorce proceedings in Syariah courts are more lengthy and difficult. There are also complaints of the wife filing for divorce being subjected to unfair bargaining during negotiations. If the wife who has filed for divorce agrees not to apply for mutaah and maintenance, the husband may agree not to object to the divorce application, thus making it much easier for the wife to obtain her divorce. If the wife refuses to renounce her financial claim, the husband would object to her divorce application, resulting in complicated and lengthy proceedings. Therefore, she feels that the court should recognize the women’s rights so that women should not be intimidated into renouncing their financial rights in order to get a divorce.
Norma A. Maruhom, the Philippines
The forms of divorce in the Philippines and in Malaysia are quite similar. In the Philippines the forms of divorce are through talaq (divorce pronouncement by the man), khul’ (divorce requested by the wife through payment of a certain amount of money to the husband), fasakh, (where the wife applies for divorce under one of the grounds provided in the Code) tafwid, (where the wife exercises a delegated right of divorce) ila (where the husband takes an oath of abstinence) and zihar (injurious assimilation of the wife by the husband). In the Philippines change of religion is not provided for as a ground for divorce and there is also no provision for ta’liq (divorce for breach of condition in the marriage contract). However, tafwid and ta’liq may be similar in that the conditions under which the wife may exercise the delegated right of divorce may be provided for in the tafwid. The speaker pointed out that in the case of talaq (when the husband divorces the wife), there are no grounds mentioned in the Code of Muslim Personal Laws (CMPL). The man can, at anytime, anywhere, and for whatever reason, repudiate the wife. Therefore, it is recommended that to be fair to the parties, the reasons for talaq should also be enumerated in the Code in the same manner as the reasons for are enumerated.
Halijah Mohammad, Singapore
Compared with other communities, the divorce rates are highest among the Muslims in her Singapore. One out of four Muslim marriages end up in divorce. Even though divorce is discouraged, it is also fortunate that the Syariah Courts do not make concerted efforts to put obstacles in divorce proceedings. The divorce process is quite expeditious in Singapore, where the rules for divorce are statutorily provided. However, Halijah also touched upon the problem of the implementation of the legal provisions and the burden of proof required. For instance, if the husband does not provide the wife with maintenance for more than 4 months, under the law, she can get a divorce. The provision in the law is all very well, but the question is: how is it to be proved in Court? Lawyers in Singapore have always had this problem because the judges sometimes come up with very strange ways to see whether the lack of maintenance has been proven or not.
Hindun Anisah, Indonesia
The divorce rate is highest among Muslims compared to that among the other communities in Indonesia. The law provides that a divorce is only valid when it is pronounced in the Syariah Court. Both husband and wife have the rights to apply for divorce. There are eight grounds of divorce; i.e. either party indulging in vice such as drinking alcohol or gambling; husband deserting the wife for more than 2 years; husband being imprisoned for 5 years or more; domestic violence; illness affecting conjugal relations; continuous disputes between husband and wife; breach of the ta’liq (condition in the marriage contract) and apostasy. However, when divorce is granted due to the husband’s violation of a ta’liq, the judgement is discriminatory against women because the wife has to pay R1000.00 to the husband. The question is, why should payment be made by the wife to the husband when the divorce took place because of the husband’s fault? The court construes this to be fair because the divorce is demanded by the wife and not the husband. This attitude highlights the inequality that exists between the husband and the wife.
There was mention of a Malaysian case in which a woman was unable to obtain a divorce by fasakh even though the husband had been convicted of causing grievous bodily harm to her and had been sentenced to 10 years imprisonment. (The woman was finally granted a divorce by talaq after the husband agreed to pronounce talaq upon her agreeing not to claim for mutaah and iddah maintenance). Tuan Haji Mohd Naim (a Malaysian Syariah Court Judge) said that this is unfortunate and strange since it should have been sufficient for the Court to uphold the application for fasakh. In cases of failure by the husband to maintain the wife, in one of his judgements, he has shifted the burden of proof to the husband to prove that he has been providing maintenance for the wife, instead of the wife having to prove that the husband has not been providing maintenance, even though it was the wife filed the divorce application. The principle he applies is that if the husband has failed to prove the provision of maintenance, then the wife is asked to take an oath (on the lack of maintenance) and the divorce is granted by the Court upon the wife’s solemn oath.