All Divorce Should Take Place in Court

Letter to the Editor

October 21, 2011

In reference to the proposal in Kelantan to introduce harsh punishments on men who divorce their wives without reason, Sisters in Islam proposes that divorce should only take place in court. This will put a stop to Muslim men unilaterally divorcing their wives without just cause, which has contributed to the much higher divorce rate among Muslims in Malaysia.

We do not believe that increasing punishments for divorce without valid reason is the right solution. Instead, the Kelantan and other state religious authorities should revert to the original provision in the Islamic Family Law Act and Enactments of 1984. This requires that all applications for divorce must go through the court. Hence, all pronouncements of divorce outside the court, including by sms, are invalid.

However, in 1994, amendments to the Islamic Family Law created a loophole that allows the court to approve the pronouncement of talaq without permission of the court if it is satisfied that the talaq is valid according to Hukum Syarak.

While the offending men may be liable to a fine of RM1,000 or six months’ jail, the divorce can be registered and validated. This has led to a proliferation of cases of men divorcing their wives at will, sometimes even without the knowledge of the wife. Within two years of the amendment, research conducted by the Women’s Centre for Change in Penang (WCC) found that the number of men who pronounced the talaq outside the court was more than three times those who applied for divorce through the courts.

We believe that divorces pronounced on frivolous grounds can be effectively contained by requiring all applications for divorce to go through a court process. This will also ensure that women and children are guaranteed of their rights under the law, which includes the woman’s right to muta’ah (financial compensation) and division of matrimonial assets and the children’s right to maintenance.

It is time for Malaysia’s state religious authorities to remove this loophole in the law that has been abused, and revert to the 1984 provision. In several Muslim countries, including Indonesia, Iran, Morocco, Algeria and Tunisia, all divorces must go through the court.

Ratna Osman
Executive Director Sisters in Islam – SIS Forum (Malaysia)

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