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Issues 28

Marriage is a lifetime commitment. However, there are circumstances whereby the marriage may end unexpectedly either by divorce or death of either partner. It is undeniable that in most cases than not, women are more affected emotionally or financially as a result of a divorce or death of a partner. Women are more vulnerable in the event of marriage breakup. First, because not all women have an independent means of income. Many have to give up their careers to care for children. By the time they are forced to get back on their feet they probably have missed the age of employability denying them the opportunity to steady income.

For that reasons women need the force of law to protect them especially when they are left to mend with young children. For the purpose of this article, we will focus on post divorce rights accorded to Muslim women embedded in the Islamic Jurisprudence

Immediately after divorce, Muslim women has a right to Nafkah Iddah. Nafkah Iddah is an obligatory maintenance relating to food, clothing and accommodation for the wife, children and widow as required by Hukum Syarak. The amount of compensation depends on the women’s life style while she was married. In other words to preserve the status quo of the women. The computation for Nafkah Iddah is equivalent to three months of her normal monthly needs. The three times computation is precisely based on the duration of three menstural period.

Payment for maintenance is also mandatory. Not only a divorced woman entitle to future maintenance but she can also claim for maintenance in arrears, if any. It includes right to claim for maintenance not provided to her even during marriage and all other maintenance in arrears after the divorce. This claim can be brought against the husband anytime whenever the husband fails to provide, be it during marriage or post divorce.

In Islamic Jurisprudence on child custody (Hadhanah), there is an inference that children, especially minor, are best cared for by their mother. The rationale for this is that most cases and most of the time women are to sacrifice their careers to care for the children thus putting them in a special relationship with their offsprings. Section 81-87 of the Islamic Family Law Act (Wilayah-Wilayah Persekutuan) 1984 also specifically states the chronology of priority of whom shall have the custody of minor children. The first in line is the mother then maternal grandparents. The father is only third in line, but this is not to be construed as the only determinant of rights to custody. There are many other factors to be considered which may give the father custody if it is proven to be in the best interest of the minor children. However, either father or mother may apply for interim order for custody in urgent circumstances such as school registration or medical purposes, before a permanent custody is granted.

Section 72-80 of the Islamic Family Law (Wilayah-Wilayah Persekutuan) 1984 provides for rights to children maintenance. Maintenance for children under the custody of divorced women is one of the very important rights accorded to divorced women. Minor children and school going children must be able to continue their studies and their wellbeing taken care of despite family breakups. Their daily needs such as food, accommodation, clothings, medical and education must be provided for. The amount of maintenance depends largely on the father’s financial position and his other responsibilities such as if he is remarried and have to care for his new family. Of course no formula fits all situation. It is must really be fair and balance to all parties at stake.

Mutaah, which is a compensation given by a husband to a woman due to divorce, is another rights accorded to Muslim women. It is meant to provide for women to be able to carry on with her life. It is a big help especially if a woman is unemployed. Section 56 of the Islamic Family Law Act (Wilayah-Wilayah Persekutuan) 1984 specifically provided for such compensation. The amount given is based on mutual agreement. However, in the event the parties cannot agree on the amount, then a Syariah Judge will decide. This will normally be based upon the length of marriage, the life style during marriage and status in society as well as education level a woman has achieved.

Section 58 of the Islamic Family Law Act (Wilayah-Wilayah Persekutuan) 1984, in the event of divorce, Muslim women have the right to the division of matrimonial properties or Harta sepencarian which properties are acquired during the marriage. It is undeniably that women contribute directly or indirectly to the wellbeing of her family and even help in elevating her family’s wealth and status in society. Thus, women have rights to claim her share to the division of wealth in event divorce inevitable. A Syariah Judge will determine to what extend the spouses contribute to the acquisition of properties during marriage.

Islamic Jurisprudence relating to women’s rights in case of divorce has thoughtfully considered that not all women have an independent means of income or financial assets to support themselves. In most cases, women would be unable to gain employment due to prolong period of unemployment, will in the case of divorce or death of the husband, be left in a precarious situation. This will have a long-term negative impact on women. Thus, it is rightly so that women’s rights be protected by the force of written laws.

Note: We at KIQ has provided for legal services relating to Islamic Family Law in areas of divorce and succession