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Syariah Law

A Syariah Divorce Lawyer’s Guide To Muslim Divorce In Singapore

January 10, 2018

    Overview

    A Syariah divorce takes place when parties who have entered into a Muslim marriage wish to terminate thesuch marriage. An iImportant point to note is that a divorce in the Syariah court is not the same as a civil divorce in Singapore. In a Syariah divorce, Muslim law applies and not secular law.

    Section 35 of the Administration of Muslim Law Act statesis where it is stated that the Syariah Court in Singapore has the jurisdiction to deal with matters relating to Muslim marriages and divorces.

    Requirements for a Muslim Divorce

    Besides requiring that the spouses must both be Muslims or married under Muslim law, applying for a divorce at the Syariah court requires that either party must:

    • be a citizen of Singapore or
    • have lived in Singapore for a minimum of 3 consecutive years prior to the divorce or
    • be domiciled in Singapore

    In instances where neither spouse is a citizen of Singapore, you (the party initiating the divorce) will need to provide proof of your residence in Singapore for the 3 years preceding the date on which you submitted your registration form. This can be in the form of an employment agreement or a tenancy agreement, for example.

    Registration and Marriage Counselling Programme

    To apply for a divorce, you first have to register your application at the Syariah court. Once the registration has been completed, the Syariah court will issue you with a referral letter requiring you to attend the Marriage Counselling Programme. It is mandatory for parties married under Muslim law to attend the Marriage Counselling Programme. The purpose of the programme is to provide you and your spouse with a safe and neutral platform wherein you can discuss possible ways of overcoming the difficulties you are going through and wherein you can be made to understand the impact of a divorce on you, your spouse and any under 21 children under the age of 21 you may have. A Parenting Programme will also be made available for the said children.

    Parenting Programme

    Should you decide to proceed with the divorce and you have at least one child under the age of 21, your marriage counsellor will facilitate a Parenting Programme to be taken up by both you and your spouse. The aim of the Parenting Programme is to equip you and your spouse with co-parenting skills and to discuss the children’s care arrangements after the divorce.

    If you are in agreement regarding the parenting plan, you must both complete and sign the Agreed Parenting Plan form which will be submitted together with the originating summons. Important to note is that the defendant (i.e. the party who did not initiate the divorce) must sign the form in the presence of a Commissioner of Oaths.

    If you and your spouse are not in agreement regarding the parenting plan, the plaintiff (i.e. the party who initiated the divorce) will have to complete and submit a Proposed Parenting Planning form.

    How Do I Commence the Syariah Divorce Proceedings?

    Several documents must be compiled and filed in the Syariah court in order for Syariah divorce proceedings to be commenced in Singapore.

    Originating Summons

    If at the end of the Marriage Counselling Programme you decide to proceed with the divorce, you may commence the divorce proceedings by filing an originating summons. As the party who lodges the application for a divorce, you are referred to as “the plaintiff” while your spouse is referred to as “the defendant”.

    The plaintiff has to submit a “Letter for Filing of Originating Summons”. It is a letter detailing instructions on how to meet the requirements for filing the divorce application. The plaintiff should write N.A (non-applicable) on the parts of the form which are not applicable to him. Any forms or documents that are incomplete will render the divorce application unsuccessful.

    Should the filing process be successful, the plaintiff and the defendant will be given an appointment date on which they must attend mediation or a pre-trial conference.

    Case Statement

    The second document that is required is a case statement. It specifies the grounds for divorce on which the plaintiff is relying.

    Proposed Parenting Plan

    As mentioned earlier, if there are any children born from the marriage who are under the age of 21, the applicant will be required to set out their current and proposed arrangements together with the orders that he seeks from the Syariah court.

    Proposed Matrimonial Property Plan and Particulars of Housing Arrangement

    For married couples Spouses who co-own a Housing and Development Board (HDB) flat, the plaintiff will also need to file a Proposed Matrimonial Property Plan and a Particulars of Housing Arrangement. The purpose of these documents will be to articulate the details regarding the matrimonial home, the outstanding mortgage and how the plaintiff proposes the flat should be dealt with upon divorce.

    The originating summons for divorce and the relevant documents that accompany it must be served on the defendant. They may be served on the defendant by way of personal service, registered post or substituted service and this should be done within 12 months from the date on which the originating summons was filed.

    The defendant, after having been served with the originating summons, is subsequently required to acknowledge the receipt of the originating summons and file his Memorandum of Defence within 21 days of being served. It is at this point that he may wish to engage the services of a Syariah divorce lawyer in Singapore.

    Service of the Originating Summons via Personal Service

    If the plaintiff has opted for and paid to have the originating summons served on the defendant by personal service, he will have to provide the court with the defendant’s last known local residential address. This is done so that the court can send a letter to the defendant requesting him to accept service of the documents at the Syariah court. Should the defendant not collect the originating summons in person at the Syariah court, the court will make an attempt to serve the originating summons at the address provided by the plaintiff.

    Service of the Originating Summons via Registered Post

    In cases where the plaintiff has chosen for the originating summons to be served by registered post, he must send all the filed documents as well as a blank Acknowledgement of Service form and the blank Memorandum of Defence form to the defendant by registered post. The defendant will then be required to sign and return the Acknowledgement of Service form to the plaintiff. Upon receipt of the signed Acknowledgement of Service form from the defendant, the plaintiff must file it in court.

    Service of the Originating Summons via Substituted Services

    When personal service or service by registered post has not been successful or is not possible, alternative methods must be used to notify the defendant of the divorce proceedings. Such methods include:

    • a newspaper advertisement
    • registered post (without the need for the defendant to return a completed Acknowledgement of Service form) or
    • electronic mail

    For this type of service to be effected, the plaintiff has to apply to the court for an order of substituted service. The application itself consists of a filed summons and a supporting affidavit.

    The plaintiff will be notified of the outcome of the application after 3 working days. If the application is granted, the plaintiff must pay for the order of the court that specifies his selected method of substituted service. He subsequently has to serve the originating summons in accordance with the method stated in the order of court and must, thereafter, file the affidavit of service.

    The key thing to note about substituted service is that the plaintiff cannot carry out substituted service until he has obtained an order of the court.

    Mediation

    Mediation in Syariah divorce proceedings exists for the purpose of assisting the parties to the divorce in reaching an agreement vis-à-vis the divorce and its ancillary matters. Such matters include the nafkah iddah, mutaah, custody of children and the division of the matrimonial property.

    It is possible for the divorce to be heard on the same day if there is mutual agreement on the divorce and the ancillary matters and provided that the court approves of this mutual agreement. Should the parties not agree, the divorce will be referred for a pre-trial conference at a later date. A pre-trial conference may also be necessary for instances where the parties propose that the care and control of any under 21 children that they have be shared between them.

    Because a lack of mutual agreement tends to prolong the divorce process, parties are highly encouraged to work towards an amicable agreement at the mediation stage.

    What Can I Claim from My Spouse?

    The wife in a Syariah divorce can claim nafkah iddah. It is the maintenance for the period during which a divorced Muslim woman may not – by Muslim law – remarry.

    Moreover, the wife can claim mutaah. Mutaah is a consolation gift given to a wife whose husband has divorced her. The amounts in respect of nafkah iddah and mutaah are proposed by the wife and are subject to the court’s discretion. The court will take into account the husband’s financial means and the circumstances surrounding the divorce when determining these amounts.

    The husband’s Central Provident Fund (CPF) and the proceeds from the sale of the HDB flat are also claimable by the wife. Again, the amount granted by the court will be cognisant of the husband’s financial means and each party’s direct and indirect contributions during the course of the marriage.

    Pre-trial Conference

    A pre-trial conference is where the divorce is prepared for a hearing. It is conducted by the registrar or deputy registrar of the court who gives directions as to which documents will need to be filed in order to prepare for the hearing of the divorce case. The plaintiff and the defendant need not attend the pre-trial conference if they have both engaged the services of a lawyer as their lawyers can attend it in their capacities as representatives of the parties.

    The parties will only be given a hearing date once they have complied with all the directions of the court. In some instances, the court may advise or order the parties to engage the services of a hakam (arbitrator).

    Hearing

    A president of the Syariah court conducts the hearing. During the hearing, the court decides on the case based on the evidence that has been submitted in the affidavits. If there is a dispute pertaining to the custody, care, control and access to any of the parties’ children aged between 7 and 21, the child may be required to appear in court.

    Unlike in pre-trial conferences, the parties are required to be present at the hearing even if they have both engaged the services of a lawyer. If the plaintiff is absent at the hearing, the court may close the case. If it is the defendant who is absent, the hearing could still proceed provided that the plaintiff has filed the required affidavits and has complied with all the court’s directions.

    In some instances, the court will require 2 adult male Muslim witnesses to give evidence on behalf of the plaintiff.

    There are also cases where the court orders or advises parties to appoint hakam (arbitrators). The court would then schedule a hakam session (arbitration) for which the parties would pay $150 each for the hakam session and $22 for the order of the court. The purpose of a hakam session would be to encourage reconciliation or to facilitate an amicable divorce where reconciliation is not possible. Once the hakam session has been completed, the hakam will give the court feedback on whether or not the parties should get divorced by giving the court a report.

    Variation Application (Summons)

    If the parties undergo a material change in their circumstances, they may file a variation application in the form of a summons to vary the order of court. After the applicant has filed this summons, he must serve the summons and the relevant documents that accompany it on his spouse (the respondent). As is the case with the originating summons, service of this summons may be effected by way of personal service, registered post or substituted service.

    Once the application has been filed, the court will fix a date for mediation or pre-trial conference for both parties to attend.

    If the applicant wishes to represent himself during these variation proceedings, he is welcome to do so provided he files a Notice of Intention to Act in Person at the time of filing the summons.

    Collection of Divorce Certificate and Order of Court

    Upon its satisfaction with the divorce case and upon granting an order on the divorce and ancillary matters, the Syariah court will issue the divorce certificate. This certificate will only be made available at the end of the iddah period. The order of court for the divorce itself is released 7 working days after the order was made.

    Enforcement of Syariah Court Order

    Syariah court orders on maintenance (iddah or mutaah) or custody issues are made in the family justice courts. If one of the parties does not comply with the orders of the Syariah court, the other party may lodge a magistrate’s complaint at the family justice courts as per section 53 of the Administration of Muslim Law Act.

     

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