Fasakh in a Muslim Divorce in Singapore: Grounds & Process
What is Fasakh?
Fasakh is defined as the dissolution of a Muslim marriage contract by judicial decree. In a nutshell, the court grants a divorce as it is satisfied, based on the evidence available, that there are grounds for the couple to be divorced.
Divorce by fasakh does not require the husband to pronounce talak, or a reliance on a taklik, or payment of compensation by the wife to the husband under khuluk.
There are several grounds to obtaining a divorce under fasakh. One example is obtaining a fasakh when in a polygamous marriage because the husband had spent all his time and money on his other wife, and failed to maintain the other wife who is seeking the divorce, as well as the children, fairly and equally.
This article will explain:
Who Can Initiate Divorce by Fasakh?
The Administration of Muslim Law Act provides that either spouse can rely on fasakh in an application for a divorce.
Other grounds for divorce
Apart from fasakh, other grounds for a Muslim wife to divorce her husband in Singapore are:
- Khuluk (divorce by paying compensation/redemption from the wife to the husband)
- Divorce by cerai taklik (divorce by breach of marriage condition)
If it is the husband who wants the divorce, he can initiate the divorce by simply pronouncing talak on the wife. For more information, please refer to our article on talak in a Muslim divorce.
How to Initiate Divorce by Fasakh
Either spouse can initiate a divorce by fasakh by applying to the court for a decree of fasakh.
The grounds that the wife can use to obtain a divorce by fasakh
For the wife to file for divorce under fasakh, she will need to prove at least one of these grounds:
- Her husband has neglected or failed to provide for her maintenance for a period of 3 months;
- Her husband had been sentenced to prison for a period of 3 years or more and the sentence became final;
- Her husband failed to perform his marital obligations for a period of 1 year without a reasonable justification;
- Her husband had been impotent at the time of the marriage and still is;
- Her husband is insane or is suffering from some chronic disease either for which there is no cure, or which is such that he would take a long time to be cured, and this is such that the continuance of the marriage relationship is harmful to the wife;
- That her husband treated had her with cruelty by doing any of the following:
- Habitually assaulting her or treating her cruelly so as to make her life miserable, even if his conduct does not amount to physical ill-treatment;
- Associating himself with women of ill repute, or leading an infamous life;
- Attempting to force her to lead an immoral life;
- Obstructing her in the observance of your religious profession or practice;
- Living and cohabiting with another woman who is not his wife; or
- (If he has more than one wife) Not treating the wife who is seeking a divorce equitably in accordance with the requirements of the Muslim law;
- On any other ground that is recognised as valid for the dissolution of marriage by fasakh under the Muslim law.
The grounds that the husband can use to obtain a divorce by fasakh
For the husband to obtain a divorce by way of fasakh, he needs to prove any ground(s) that is/are recognised as valid for the dissolution of marriage by fasakh under the Muslim law. These grounds may be similar to those available to the wife.
An example of a ground of divorce that the husband can rely on involves the wife having a defect. This defect could be where the wife is found to be insane or suffering from a chronic disease for which there is no cure, or which is such that she would take a long time to be cured, and this is such that the continuance of the marriage relationship is harmful to the husband.
How to prove grounds of divorce by fasakh
Proving any of the grounds for a divorce by way of fasakh involves the Syariah Court recording the sworn statements.
The Syariah Court may then make a decree of fasakh if it is satisfied that you are entitled to one.
Procedure for obtaining divorce by fasakh
An application has to be made to the Syariah Court for a decree of fasakh.
Once the Syariah Court has received your application, it will have a summons served on your spouse.
During the court proceedings, the Syariah Court will record the sworn statements of the applicant, which is yourself, and of at least 2 other witnesses. The Syariah Court may then make a decree of fasakh if it is satisfied that the applicant is entitled to a decree of fasakh.
However, an application for a decree of fasakh can be delayed or dismissed depending on the circumstances or grounds of the divorce.
For example, if the wife’s ground of divorce under fasakh is that the husband had been impotent at the time of the marriage and remains so, the husband can make an application to the Syariah Court before a decree of fasakh is passed to delay the application for the decree of fasakh.
The court will then make an order requiring the husband to satisfy the court within a period of 1 year that he is no longer impotent. This means that the decree of fasakh would be delayed by 1 year pending the outcome of the husband’s application.
If the husband is able to satisfy the Syariah Court that within the 1 year period that he is no longer impotent, then the court will not pass a decree on that ground. However, this does not prevent the wife from obtaining a decree of fasakh on other grounds if there is more than one ground in the application for divorce by fasakh.
What Happens Upon Successful Divorce by fasakh?
Registration of divorce
When the Syariah Court is satisfied that you are entitled to a decree of fasakh, the Syariah Court will make this decree and have it immediately registered.
The Register of Divorces will then be signed by the Registrar of the Syariah Court, you, and the witnesses whose evidence had been taken by the Syariah Court.
Upon the divorce by way of fasakh, the Syariah Court will also deal with the following where applicable:
- Custody of children
- Division of matrimonial property
- Payment of nafkah iddah and mutaah from the husband to the wife
The wife can obtain nafkah iddah from her husband in a fasakh divorce unless she is found to have been nusyuz. “Nusyuz” means a wife who does not obey her husband.
In a divorce by fasakh, the wife is entitled to mutaah even if she is found to be nusyuz. The mutaah granted where she is nusyuz on the ground of ihsan (compassion).
Read our article on Muslim divorce in Singapore for more information on these ancillary matters.
Can Couples Remarry After Divorcing by Fasakh?
Fasakh is an irrevocable divorce.
An irrevocable divorce means that the marriage is ended without the possibility of the same couple remarrying. This is unless the wife had been lawfully remarried to another man after the divorce, and then divorced from that man after consummation of that marriage to him.
Divorce has major consequences and readers should think carefully before going ahead with one. Avoid being impulsive about it.
We recommend that you consult a Muslim divorce lawyer if you are considering a divorce through fasakh. The lawyer will be able to help you understand if your evidence supports an application for divorce under fasakh, and also assist you in your application.
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