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Written by: Averroes
(1.0) Introduction
Congratulations, you managed to marry a anak papa syarikat besar from the drama pukul 7pm on TV, multi-millionaire, perhaps a doctor, lawyer, engineer you name it. The list goes on and on.
(2.0) Relevant Laws
Watch and learn.
(2.1) Divorce Methods
Method Number 1 (Talaq):
While common, this type of divorce requires extreme effort. You will have to annoy or pester your husband so much, that divorce becomes the topic of his mind and he wants to say talaq a million times. It's time to think creatively.
Talaq is the word for a husband to divorce his wife under Islamic law, the maximum is 3 talaq pronunciation that will make the divorce final and binding (irrevocable).
The procedure for this is through section 47 of the Islamic Family Law Act (Federal Territory) 1984, or similar provisions in other State Enactments of each State. This procedure would then involve both husband and wife going to court. The husband will then pronounce one talaq there.
However, there will be the iddah period or period whereby the husband can ruju' if it's only one talaq. This means is that, in a span of time, the husband can get back to you after he pronounced one talaq.
Method Number 2 (Khulu'):
As a wife, the power to divorce or pronounce talaq may be vested under him, but Islam is a law of equality and justice. Therefore, even the wife has her rights or petition to divorce. This is known as khulu' or tebus talaq.
There's a catch . Though, you would have to compensate or pay your husband if you are seeking to get divorced. You will have to persuade your husband very much, show that you do not want to continue with the marriage anymore. This is because, his consent is required.
The relevant provision is through section 49 of IFLA, by going to court whereby they will assess the status and means of the parties. If you marry a rich man, then you may have to pay extra, but later in this article, your small pay can lead to larger yields.
In the case of Talib v Che Sepiah, husband kept refusing divorce, therefore the hakam has power to talaq and agreed to divorce by khulu'. It is of his opinion that the marriage cannot be saved.
Method Number 3 (ta'liq):
This method is when, during the solemnisation of the marriage, the husband promised certain conditions that if they are breached or violated, it results in divorce. This may be found under section 2 of IFLA.
For example, while getting solemnised, the husband will promise that "I will never hurt you, I will take care of you, I will never leave you, I will make money and give you a comfortable life", if he does not do any of that during the marriage, it results in the divorce, even if he did not pronounce talaq.
So, if you can create evidence, find it or make a trick to convince court that your husband hurt you or left you, perhaps around 4 months, then you can go to court and argue based on ta'liq. There is an exception. You need to prove that the reason why your husband hurt you or did not give you maintenance is not because of your own fault.
If you are nusyuz (disobedient wife), then there cannot be ta'liq, since we are the ones who caused him to behave that way. This includes running away from your husband for 4 months, clearly you are the one causing the rift.
In Hasnah v Saad, wife claimed for cerai ta'liq on the grounds that the husband assaulted her face, wife produced a ta'liq certificate declared by the husband. Court held that the wife was entitled to divorce by ta'liq.
The ta'liq does not have to be pronounced during the solemnisation, but any time after the marriage as well, as under section 22 of IFLA. Usually, the State Authority will provide him with the sample text speech and the husband would recite it during solemnisation.
Section 50(1) of IFLA, entitles you a ta'liq certificate. Sub-section (2), court will then examine the inquiry as to the validity of the divorce.
Method Number 4 (Fasakh):
This may be the deadliest, if not the most dangerous type of divorce that you may try to get.
It is provided udner section 52 of IFLA, and the marriage is dissolved by judicial degree by court if there are existence of certain circumstances allowed under the law. Among the grounds or reasons for divorce is;
i) Cruelty or ill treatment toward wife,
ii) Failure to give maintenance to wife (money and financial support),
iii) Separation due to disease or defects of wife,
iv) Husband left or deserted wife or that he is imprisoned,
As we can see here, this type of divorce is similar to ta'liq, but ta'liq is based on the conditional speech made during solemnisation. Fasakh does not require any promises, but it is the very act of the husband.
In Sakdiah v Ahmad [1972] maintaining wife is wajib (compulsory) even if the husband is poort. Court held that wife can either be patient or she can apply for fasakh.
In Hairun lwn Omar, the husband treated the wife with cruelty. Wife beating is against syariah principle.
However, if any of the those situations happen and you do not do about it, meaning if the husband constantly hits you and you're okay with it, you cannot divorce through fasakh.
Sounds the execptions to ta'liq and fasakh may sound absurd, but that's how it works.
Method Number 5 (Li'an):
This is the last divorce method, but it is not recommended. It involves making yourself look slutty and a whore so that, your husband can use this as an excuse to divorce you. Are you willing to make yourself a prostitute or a sexual cheater in his eyes?
If we cheat or have extra-marital affairs, we can get fined or go to jail. In other Muslim countries, we can get stoned. Therefore, even if we did not cheat and are just pretending to be a slut for divorce, if proven, the Islamic Authorities can prosecute us.
The provision is under section 50A of IFLA, where the parties have to take by oath of li'an according to Hukum Syarak before a Syariah Judge and then he will order the spouse to be separated. The li'an will then be registered.
(2.2) How you can steal money after divorce
It's not stealing, but it is a right that you can claim after the divorce. Among them would be the following below;
Number 1 (Ancillary Claims):
This is the money that your ex-husband did not pay which is mas kahwin (mahar in Arabic) or the pemberian (gift). In Siti Zamrah v Majid, court ruled in favour of the wife that the ex-husband must pay RM770 has mas kahwin which he has not paid.
The mahar or mas kahwin would absolutely be higher, perhaps thousands if your husband is a rich man.
Number 2 (Maintenance):
Even if your husband divorces you, he still needs to give you money during the iddah period. This is only applicable if he pronounced 1 or 2 talaq. This is under section 65(1) of IFLA.
You will have side-income, while you are divorced by 1 or 2 talaq and live separately from your husband, your bank account will have money as long as the iddah period is still ongoing. If the iddah period ends and your husband did not ruju' with you, then the marriage has effectively ended.
In Ida Hidayati bt Taufik v Ahmad Shukri bin Kassim, court ordered the husband to pay for the rent, clothes and expenses of the wife.
Number 3 (Mut'ah):
Section 2 of IFLA allows you to receive consolatory payment or gift from the ex-husband. The amount would be of a reasonable scale. However, you cannot receive mut'ah if the divorce was because of fasakh.
The amount you will receive depends on the status and financial ability of your husband. The richer he is, the higher the amount of mut'ah.
In Shahnaz bt Majid v Dato' Sri Mahmud Abu Bekir Taib, the wife claimed for mut'ah of RM100 million, due to the social and economic standing of the husband. The court granted RM30 million instead, but the husband did not agree. However, the court valued and assessed his property. Based on expert witness, the husband could afford to pay RM30 million.
Number 4 (Harta Sepencarian):
Harta Sepencarian is where, both husband and wife obtains property together or jointly under section 2 of IFLA.
The relevant provision is section 122(1) of IFLA, whereby court has power to permit pronouncement of talaq or divorce and order the division of jointly acquired properties or the sale of any assets or division between the parties proceeds of the sale.
Note, to receive harta sepencarian, the property must be obtained by both husband and wife. So, if you can prove that the Lamborghini bought by your husband also involves your money.
Chances are, you can get half the price of the Lamborghini or some of it, even if you help your husband pay for a small amount for it, or even give him motivational support to buy it or take care of it.
To determine how the property is to be divided, court will look at the extent of the contributions made by both husband and wife in money, property or labour in acquiring the assets. Hence, when making the division, court will be inclined towards equality.
For example, if both husband and wife buys a house. Husband pays most of it while wife only paid a small amount. Both of them after divorce will get the price of the house divided in half between them, even if wife pays only for a small amount.
An example of this could be in Robert v Umi Kalthum (1960) 1 MLJ 163, whereby the house costs RM50,000. Husband paid RM40,000 while wife only paid RM10,000. In the end, court stated that the house should be divided equally between them.
However, the husband can try to reduce the equal half division that you will receive. In simple terms, it means that, you're supposed to get half the price from a house example, but he will reduce that amount to let's say a quarter of it only.
In Boto bt. Taha v Jaafar b. Mohd, the parties married in 1966, the husband was only a fishmonger and wife was a coffee shop assistant. The husband's business prospered and wife left her job. She accompanied her husband on business trips. Since she accompanied him, she is entitled for 1/3 of indirect contribution from claims of joint efforts.
In Rokiah bt. Hj Abd. Jalil v Mohd Idris Shamsuddin, after the divorce, the wife claimed for matrimonial property. In the Court of Appeal, the wife was entitled for harta sepencarian, due to her indirect contribution in looking after the famly and children for 35 years.
In Tg. Anum Zahrah v Dato Hussain, moral support given by wife to get Dato' title is considered part of her contribution.
(3.0) Conclusion
To conclude, marriage is a sacred and holy bond between man and woman. This article does not condone or promote divorce, as our country is already facing an increase of divorce rates. The number of divorces increased 12% from 50,862 (2018) to 56,975 (2019).
Particularly Muslim divorces recorded a 13% increase from 40,269 (2018) to 45,502 (2019). The median age of divorce is 37 years old for men and 34 for women. The reason for increase of divorce, must have been accelerated due to the Covid-19 pandemic.
According to Ismail Sabri, the National Population and Family Development Board conducted a survey to gauge the impact of the pandemic on married couples. It was found that 80% of parents experienced economic and mental pressure from the third wave of pandemic in 2021.
This article is only as a means of reminding and explaining on the rights of men and women, and their liabilities after they get divorced and should not be as a tool to exploit one another. As long as there is love, compassion, tolerance and understanding between spouses, the marriage must remain until both grow old together.
The world is already polluted by too many disagreements and violence, it is time to appreciate one another.
(4.0) References
Department of Statisctics Malaysia Official Portal (May, 2022) Marriage and Divorce Statistics, Malaysia, 2020. Retrieved from, https://www.dosm.gov.my/v1/index.php?r=column/cthemeByCat&cat=453&bul_id=QmZ1cE4xRFAvYWQ0R05hTk1rWm5KQT09&menu_id=L0pheU43NWJwRWVSZklWdzQ4TlhUUT09
Carvalho, M., Rahimy Rahim, & Tan, T. (September, 2021) Almost 78,000 couples divorced since start of pandemic last year. Retrieved from, https://www.thestar.com.my/news/nation/2021/09/15/almost-78000-couples-divorced-since-start-of-pandemic-last-year
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