Many women are hesitant in applying for a divorce for fear of loss. A woman may fear losing her home, her children and her status quo in applying for a divorce. Here at A.W. Law LLC, we are dedicated to serving you with your best interests at heart. It is important that your rights as a woman are duly protected, and we will also ensure that you will be given fair opportunity to be heard before the Court.
Although the wife does not have the power to pronounce talak upon her husband, there are other avenues the wife may turn to in order to proceed with divorce. The wife will have to prove at least one of the following should she seek a divorce:
1) Khuluk
Khuluk, or divorce by compensation, refers to the parties’ agreement regarding the wife’s right to seek divorce from the husband. Here, talak is requested by the wife and granted by the husband, after which the wife pays him a sum of money as ‘compensation’.
The amount of compensation will be determined by the Court.
For wives seeking to initiate a divorce by khuluk, an application must first be made to the Syariah Court. Parties are expected to attend marriage counselling. Once the husband agrees to the divorce by khuluk, the Court will assess the amount of compensation to be made in accordance to the parties’ status and means.
Should the husband disagree to a divorce by khuluk, the Court may appoint a Hakam for each party who will act as the arbitrator. The Court will then make decisions based on the recommendations of the Hakams.
Do keep in mind that a divorce by Khuluk is irrevocable, meaning the marriage has ended without the possibility of the couple remarrying. This is unless the ex-wife has lawfully remarried another person and then divorced the said person after consummation of that marriage.
2) Taklik
A taklik is a condition made by the wife during the nikah which acts as her safeguard throughout the length of the marriage. One or multiple taklik can be made in accordance with the wife’s wishes, and these conditions too, may vary in nature. For example, a wife may state physical abuse as part of her taklik. If, at any point throughout the marriage, the husband breaches the taklik by beating her, the wife can file for divorce by way of cerai taklik.
Should the wife wish to initiate a divorce by way of taklik, she must first prove that the breach has happened. Once this has been done, the wife may proceed with the application to the Syariah Court to declare that a divorce has taken place.
The Syariah Court will also examine the taklik to ensure fairness and that it is not opposed to public morality.
3) Fasakh
Fasakh, or annulment, falls under Section 49(1) of the AMLA. The section provides a list of grounds where a marriage may be annulled. Amongst the grounds are:
The husband has neglected or failed to provide for her maintenance for a period of 3 months
The husband had been sentenced to prison for a period of 3 years or more and the sentence became final
The husband failed to perform his marital obligations for a period of 1 year without a reasonable justification
The husband had been impotent at the time of the marriage and still is;
The husband treated her with cruelty
Proving fasakh involves taking in the sworn statements of the parties involved. Once this is done, the Syariah Court may make a decree of fasakh if they are satisfied that the requirements have been met.
