In an effort to unravel the complexities surrounding cases of marriage dissolution under Islamic law, the Bulletin sought insights from Yusof Halim & Partners Law Office.
Their legal expertise sheds light on fasakh, a term enshrined in Syariah law, and the processes involved in addressing marital issues often overlooked or misunderstood.
Fasakh, defined under Section 2 of the Islamic Family Law, is the dissolution of a marriage due to specific circumstances stipulated by Syariah.
According to Section 46(1) of the law, there are 11 valid grounds for initiating fasakh.
However, as highlighted by the experts, this route differs significantly from divorce by talak (pronouncement) or khul’ (compensation). Fasakh requires a formal court proceeding, underscoring its procedural nature and reliance on judicial approval.
GROUNDS FOR FASAKH
Among the 11 grounds listed under Section 46(1), two are particularly prevalent in Syariah courts: failure to provide maintenance (nafkah) and abandonment.
The failure of a husband to fulfill his financial obligations is the most common cause cited by applicants. Maintenance, a fundamental marital obligation, encompasses providing adequate housing, food and clothing for the wife.
In instances where a husband fails to provide nafkah for four months or more, the wife can file a report with the Islamic Family Counselling Division.
The process involves: Filing a complaint and completing the necessary forms; a series of interviews with the wife, husband and both parties together; and if reconciliation efforts fail, a counseling officer issues a referral letter for the matter to proceed to court.
FINANCIAL OBLIGATIONS: A PERSISTENT ISSUE
Failing to provide maintenance often stems from neglect or financial instability.
Experts stress that couples should address these issues before marriage.
“A husband must consider basic needs such as housing, food, and clothing,” they note.
However, problems arise when these obligations are disregarded, leading to tensions and eventual breakdowns in marriage.
For instance, newlyweds often live with in-laws due to financial constraints. While this arrangement might work temporarily, it often causes conflicts, particularly when boundaries are blurred.
Housing inadequacies, combined with a lack of privacy, can exacerbate marital discord.
Additionally, the misconception that a working wife should shoulder financial responsibilities compounds the issue.
“A husband’s duty to provide remains, regardless of the wife’s income,” the expert emphasised. Failure to acknowledge this duty frequently leads to dissatisfaction and disputes.
PROLONGED SEPARATION
Another common reason for fasakh applications is prolonged separation, as stipulated under Section 46(1)(e).
Cases of marital abandonment can be emotionally and financially draining for the wife. In some instances, couples cease communication for years, leaving unresolved issues festering.
“Some couples go five or six years without speaking to each other,” the legal experts explained. Such prolonged neglect of marital duties – whether intentional or circumstantial – often necessitates court intervention.
In extreme cases, abandonment includes husbands who have disappeared without a trace for over a year.
If the husband’s whereabouts cannot be determined through immigration records or other means, the wife may pursue fasakh.
OTHER GROUNDS FOR FASAKH
While financial neglect and abandonment dominate court cases, other grounds include: Imprisonment of the husband for three or more years; chronic illness or diseases, such as HIV, that endanger the wife’s well-being; failure to perform marital duties, including consummation; any act or circumstance deemed harmful or unjustifiable under Syariah law.
These reasons underscore the seriousness of fasakh as a recourse for protecting women from prolonged suffering in irreparable marriages.
COUNSELLING AND MEDIATION
Before initiating court proceedings, Syariah law emphasises reconciliation.
Counselling sessions, often conducted by Islamic Family Counselling Division, aim to mediate disputes and provide solutions for troubled couples. However, when reconciliation proves impossible, the matter is escalated to the Syariah court.
Court proceedings begin with the submission of relevant documentation, followed by hearings to examine the case’s merits. If grounds for fasakh are established, the court issues a dissolution order, formally ending the marriage.
A PREVENTATIVE APPROACH
Legal experts recommend proactive measures to reduce marital disputes.
“Understanding obligations and responsibilities before marriage is crucial,” they advised.
Couples are encouraged to communicate openly about financial expectations, housing arrangements and shared goals.
Furthermore, legal awareness plays a vital role in fostering healthier marital relationships. Knowledge of Syariah law enables individuals to navigate challenges effectively and seek appropriate remedies when necessary.
Fasakh serves as a lifeline for individuals trapped in unworkable marriages, offering a structured and equitable process for dissolution.
While financial neglect and abandonment remain the most common triggers, the underlying issues often stem from a lack of preparation and understanding of marital responsibilities.
In the end, fasakh is a mechanism designed to uphold justice and protect the sanctity of marriage under Islamic law. – Rizal Faisal
