For a couple blissfully in love, deciding whether to enter into a civil or Muslim marriage is probably not the first thing on their minds. After all, there is a very natural assumption that only Muslims can marry under the relevant Islamic religious law, i.e. Syariah (Sharia) law.
In addition, non-Muslim couples are unlikely to even consider a Muslim marriage, unless they are desirous of converting to Islam.
Therefore, in a majority of cases, any decision whether to enter into a civil or Muslim marriage is only relevant to an interfaith couple consisting of a Muslim party and a non-Muslim party.
However, the decision as to whether to marry under civil or Syariah law is a fundamental one, insofar as it affects the legal rights and obligations of the parties that intend to marry.
Significantly, should parties fall out of love and decide to end the marriage, this decision as to civil or Muslim marriage will have a huge bearing on divorce and all accompanying issues, including division of assets, child issues, and maintenance.
This article unpacks some of the more notable differences in how a divorce would play out depending on whether it involves a civil or Muslim marriage in Singapore, mainly the differences in:
- Time bar and counselling
- Who can file for divorce and grounds
- Division of matrimonial assets, custody, and maintenance (ancillary matters)
Can I Even Marry Under Syariah Law?
Under the Administration of Muslim Law Act (AMLA) which governs Muslim religious affairs and Muslim personal law, only Muslim men and women may enter into a Muslim marriage.
The following scenarios are illustrative:
- Heterosexual (male-female) Muslim couple. They must contract a Muslim marriage. Parties do not have the option of a civil marriage unless either one or both parties renounce their Islamic faith.
- Heterosexual couple where both parties are non-Muslim. Parties must enter into a civil marriage. If they wish to marry under Syariah law, both must convert to the Islamic faith and formally register themselves as such.
- Heterosexual interfaith couple where one party is Muslim and the other is non- Muslim. Under Islamic law, there is an obligation for the non-Muslim party to convert to the Islamic faith and thereafter, parties can contract a Muslim marriage. However, should either party remain a non-Muslim, the couple must enter into a civil marriage.
- Same-sex couple, Muslim or non-Muslim. Parties cannot legally marry, whether under Syariah or civil law.
Different Legal Systems
Civil law and Syariah law are two completely different legal systems. In Singapore, individuals are by and large subject to the jurisdiction of our civil courts and laws. However, a constitutionally enshrined exception is made for all and any persons who are Muslims where Syariah governs issues of personal law, such as marriage, divorce, and inheritance.
Syariah law has its roots primarily in the Holy Quran and the traditions (sunnah) and sayings (hadith) of Prophet Muhammad, peace be upon him. It also incorporates a body of juristic opinion that has existed for more than a millennium.
In Singapore, AMLA is the primary statute regulating Muslim religious affairs and sets out the framework for the application of Islamic law in Singapore, including marriage and divorce. In contrast, civil marriages and divorces fall under the purview of the Women’s Charter.
Generally, Muslim divorces will be heard before the Syariah Court and civil divorces will be heard before the Family Justice Courts or the High Court (depending on the quantum of matrimonial assets in question).
Specifically, the Syariah Court will hear only proceedings where both parties are Muslims were married under the provisions of Muslim law.
In contrast, under the Supreme Court of Judicature Act (SCJA), our civil courts will not decide issues in relation to Muslim marriage and divorce, save for specific issues where they have concurrent jurisdiction in relation to issues such as child custody and child maintenance.
Difference #1: Time Bar and Counselling
The Women’s Charter does not allow a married couple to file for divorce during the first 3 years of marriage unless there are extreme circumstances, such as exceptional depravity or hardship. This 3-year moratorium against divorce does not exist for Syariah marriages. This is in accordance with Islamic juristic opinion which AMLA did not amend. Thus, one can technically get a Muslim divorce even one day after marriage.
However, do note that whether for a civil or Muslim divorce, divorce will not be immediate and parties will need to go through divorce proceedings. The timeline for said proceedings will depend heavily on whether the divorce is contested or uncontested.
The common misconception that a Muslim man can just pronounce talak (defined below) on his wife and the couple will be divorced forthwith is therefore erroneous. For clarity, any talak must first be confirmed by and then registered with the Syariah Court after it has been declared.
Counselling
For Muslim marriages, the Syariah Court requires both parties to attend a Marriage Counselling Programme before divorce papers can even be filed. This counselling is aimed at saving a marriage. In addition, both parties must also attend a parenting programme which will guide them on preparing a parenting plan if they have children under the age of 21.
For parties to a civil marriage where one party has filed for divorce, there is no mandatory requirement as to counselling with a view to saving the marriage.
However, the party filing for the divorce (and/or the other party who files a defence and/or counterclaim) is similarly required to attend a Mandatory Parenting Programme (MPP) if parties are unable to agree to the terms of the divorce and have children under the age of 21.
The MPP is designed to help divorcing parents understand the impact of divorce on their children and how best to cope with the challenges it presents.
Difference #2: Who Can File for Divorce and Grounds
Either the husband or wife to a civil marriage can file for divorce. The sole ground for divorce under the Women’s Charter is irretrievable breakdown of marriage which can be proven by establishing the following facts:
- The other party has committed adultery;
- The other party has behaved in such a way that the filing party cannot reasonably be expected to live with the other party;
- The other party has deserted the filing party;
- Parties have lived apart and separate for at least 3 years and the other party consents to divorce; and/or
- Parties have lived apart and separate for at least 4 years. Here, it does not matter whether the other party consents to divorce.
Either party, husband or wife, can rely on any of the above facts to prove irretrievable breakdown.
In contrast, whilst both husband and wife in a Muslim marriage can avail themselves to divorce proceedings under AMLA, how they go about doing so differs widely.
For a Muslim husband, he would need to make a pronouncement of talak (to divorce in Arabic) or “release” where he formally declares his intention to divorce his wife. The husband may pronounce this talak without providing any reasons or facts for the divorce.
For a talak pronouncement to be valid, it must be clear and unequivocal and must have been made voluntarily, i.e. not under duress, threat of harm and other vitiating circumstances. Additionally, for a talak ba’in or irrevocable divorce pronouncement to be valid, it must have been made with the intention to effect an irrevocable divorce and without any intention to reconcile or “rujuk”.
The validity of a talak pronouncement made in any case is determined by the Syariah Court. If a talak pronouncement is found to be invalid, the husband will have to formally make the pronouncement in court where it shall be recorded.
For a Muslim wife, she cannot avail herself to such a declaration. To obtain a divorce, she would usually have to:
- Prove breach of the conditions of the marriage contract (taklik). Usual breach of conditions would include the husband leaving his wife for a period of more than 4 months, failing to maintain the wife where she was obedient to the husband, or committing any act that causes injury to the wife’s body or damage to her property or causing her to lose self-respect;
- Seek an annulment (fasakh) on grounds such as failure to pay maintenance, being sentenced to imprisonment for 3 years or more, failure to perform marital obligations, impotence, insanity, cruel treatment, lives and cohabits with other women, associates with women of ill repute or leads an infamous life etc.; or
- Make a request to stop or dissolve a marriage by redemption (khuluk), where usually the wife pays a certain sum of money to the husband in exchange for pronouncement of talak.
Whilst these conditions seem onerous on the Muslim wife, in practice, there may be other means for the wife to exit the marriage. If the husband refuses to consent or the wife fails to meet her burden of proof for the above, a court can order arbitration (tahkim) where arbitrators (hakam) will be appointed to resolve the dispute.
Where a husband refuses to attend tahkim, the hakam is empowered to dissolve the marriage by pronouncing the talak.
Difference #3: Division of Matrimonial Assets, Custody, and Maintenance (Ancillary Matters)
Unlike the two preceding sections, there are more similarities than differences when it comes to ancillary matters for civil and Muslim divorces. The main difference lies in the fact that for a Muslim divorce, the wife is entitled to nafkah iddah and mutaah, whereas there are no such awards for civil divorces. However, there are other important and nuanced differences that will be discussed below.
Nafkah iddah and mutaah
From a juridical perspective, Muslim divorces are akin to a breach of contract where the wife is entitled to “compensation” for the breakdown and end of the marriage. AMLA recognises the wife’s entitlement to and the corresponding obligations of the husband under sections 35(2) and 52(3) of the AMLA.
Nafkah iddah is akin to maintenance which the divorcing husband must provide for his wife spanning 3 menstrual cycles (in practice, 3 months) where the wife is in iddah (waiting period) and cannot remarry.
Nafkah iddah is payable in all cases except where the husband has pronounced talak ba’in (irrevocable divorce where 3 talak have been pronounced), divorce upon a hakam’s pronouncement, divorce by khuluk, or where the Syariah Court is satisfied the wife was nusyuz.
Nusyuz has been defined in the Kifayatul Akhyar as the situation:
“where by words or action, a wife who is usually gentle with her husband becomes gruff, or a wife whose usual sweet face turns surly or who turns away from her husband”.
In practice, a wife is nusyuz where she has been disobedient or has deserted her husband.
Mutaah is a consolatory gift from the husband to his divorced wife to mitigate for the shame or loss she suffers by virtue of the divorce.
Mutaah is computed based on a daily rate (usually between $3.50 to $5.50, although there are exceptions) multiplied by the number of days the marriage has lasted. It is payable in all instances of divorce.
For more information, you may wish to refer to our article on applying for a nafkah iddah and mutaah.
Division of matrimonial assets
In civil divorces, the division of matrimonial assets is guided by the Women’s Charter. The said Charter provides the court with guidance on what is a matrimonial asset and the considerations and circumstances a court must consider in deciding how matrimonial assets are to be divided.
These include the contributions, financial or otherwise, of each party towards the pool of matrimonial assets, the needs of any children, and any prior agreements on how these assets should be divided, such as pre-nuptial or post-nuptial agreements.
Pursuant to a 1999 amendment, the same provisions from the Women’s Charter were incorporated into various sections of AMLA to similarly guide the Syariah Court on the definition of matrimonial assets and how to divide these assets.
The process of division of assets is therefore similar, whether in a civil or Syariah divorce. The focus is on a “just and equitable” division whether under AMLA or the Women’s Charter.
Issues of custody, care and control, as well as access
Both the civil courts and the Syariah Court deal with children’s issues on the basis that the welfare of the child is paramount. For example, the Syariah Court has recognised the concept of joint custody as good law, following from the civil courts, and that both parents have an equal responsibility for their children.
However, what is in the best interests of the child will depend largely on the facts of each individual divorce and there may be nuances in decisions of the civil courts and the Syariah Court. For example, the Syariah Court may focus on ensuring children are brought up as good Muslims – even where the parent with care and control is no longer a Muslim.
Further, Syariah law permits the court to hear the wishes of a child directly and to consider the said child’s interview and preferences (if the child is above 7 years of age). Whilst the civil courts do consider the wishes of the child, there is a greater focus on overall welfare and what is in the best interests of the child, by way of conduct of social service reports, such as Home Study Reports.
Maintenance
In divorce, there are 2 types of maintenance:
- Spousal maintenance; and
- Child maintenance.
Spousal maintenance
The Syariah Court does not make maintenance orders.
As discussed above, in Muslim divorces, ex-wives are paid “compensation” in the form of nafkah iddah and mutaah. Muslim men do not have the option of seeking spousal maintenance. Neither can they claim nafkah iddah or mutaah.
In contrast, both men and women can seek spousal maintenance in a civil divorce. However, for men, they can make a claim for maintenance only if they are incapacitated by physical or mental disability, unable to earn a living as a result of the disability, and/or unable to support themselves.
In deciding the quantum of spousal maintenance, the court will consider parties earning capacity, the division of assets, their future financial needs, obligations and responsibilities, their standard of living prior to divorce, their age, the duration of the marriage, and their contributions to the family.
If maintenance is awarded, the aim of the court is to place parties in the financial position they were in if the marriage had not broken down. The default position is that if there was a “just and equitable” division of assets, there should be no need for a court to order spousal maintenance – especially where an ex-spouse is able to provide for himself or herself.
Child maintenance
As alluded to above, the Syariah Court cannot order maintenance for children. Instead, divorcing Muslim couples must apply to the civil courts (i.e. the Family Justice Courts) to decide on child maintenance.
Do note that Syariah Court divorce proceedings must be stayed (i.e. suspended) if either party applies to the Family Justice Courts in respect of issues of interim (whilst the marriage is ongoing) spousal maintenance and/or child maintenance.
Similarly, the Family Justice Courts will stay proceedings involving issues of custody of children and/or division of matrimonial assets, if there are pending divorce proceedings in the Syariah Court or there is a decree for divorce from the Syariah Court.
In determining child maintenance, the civil courts will consider all the circumstances of the case, including:
- The financial needs of the wife, husband, or child
- Parties’ income, earning capacity, property, financial resources
- Any physical or mental disability of the wife, husband, or child
- Parties’ age and the duration of the marriage
- Parties’ contributions to the welfare of the family and marriage generally
- Conduct of each of the parties to the marriage
- Parties’ expectations of how the child should be raised
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The decision between a civil or Muslim marriage can be difficult to make because each couple faces their own unique circumstances. Further, this difficulty is compounded because a young couple is made to consider the implications of divorce even before they are married.
I understand this difficulty. If you need legal advice on your situation, do not hesitate to contact me.
With contributions from Azri Imran Tan & Abdul Aziz.
