DIVORCE IN MALAYSIA ACCORDING TO SYARIAH COURTS AND CIVIL COURTS

DIVORCE IN MALAYSIA ACCORDING TO SYARIAH COURTS AND CIVIL COURTS

Ahmad Amjad Bin Abdullah
Nur Nabila Syafiyya Binti Suzura
Nur Maizatul Ain Binti Mohamad Samsudin
Nur Liyana Madihah Binti Abdul Rahim
Jabatan Pengurusan Perniagaan dan Perakaunan

KPM Indera Mahkota

Recently, many divorce cases that we hear are increasing in Malaysia. Divorce is one way to end the
marriage bond. Lafaz talak that can only be made by the husband is one of the common divorces we
hear by Malaysians. Divorce is a last resort if efforts to restore the marriage fail. This divorce will have
a detrimental effect not only on the couple but also on the children and people around.

Divorce that occurs in Malaysia will be divided into two ways to file a divorce application process. For
Muslim couples, the divorce process will be heard in the Syariah Court while for non -Muslim couples,
the divorce process will be filed in the Civil Court. According to statistics from the Syariah Judiciary
Department, there are an average of 121 divorce applications in a day. The main factors of divorce
are due to financial problems, domestic violence and lack of understanding with each other. Divorce
cases for Muslims will be heard in the Syariah Court. Divorce can also occur either orally or in writing.

In the case of Sharifah Laila bt Syed Shamdin v. Abdul Latif bin Arshad, the defendant pronounced
the triple talak sickle with one word. Under the application according to the Syariah Court, the
defendant has fulfilled the conditions for divorce, namely a lawful husband, Muslim, puberty and sane,
clear words and intentions, a lawful wife and capable of divorcing his wife. So if the conditions are
met, then the divorce is valid. This divorce is under Act 303, Islamic Family Law (Federal Territories)
Act 1984 Part V. Dissolution of Marriage Section 47. Among the divorces that can be filed in the
Syariah Court is a consensual divorce together, fasakh divorce and confirmation of divorce.

There are 5 divorce procedures according to Syari’ah courts. One of them is the application for
divorce by talaq by mutual consent. For this divorce, the husband or wife must submit the completed
divorce application form and register the case at the court counter. Next, wait for the trial date in court.
In court the husband and wife must be present together with the original documents of the marriage
certificate and identity card or passport. The husband pronounced talaq on the wife and the court
confirmed it. Next, send the divorce record to the state Islamic religious department and a divorce
certificate is issued.

Divorce performed for a couple who profess a religion other than Islam must file an application in the
Civil Court. Under a divorce application for a non -Muslim couple, the period of the marriage must be
after two years from the date of marriage to prevent one of the couple from marrying another. For
couples who agree to end their marriage, they can file the divorce in court when the couple willingly
and without coercion to divorce. While for couples who are disputing for divorce, one can file an
application for divorce on the grounds that the marriage has caused the relationship to be destroyed
as a result of the marriage that has split and can not be saved.

In the case of Tan Sung Mooi v. Too Miew Kim in 1994, the Supreme Court ruled that when a convert
divorces, he or she still has the same obligation to pay alimony and child support payments just like
civil law. Divorce for non -Muslim spouses is seen based on Marriage and Divorce 1976 (Act 164).
The Act provides the power to the court to decide if there is a dispute in a claim.

Divorce according to the Civil Court has 5 procedures. The first step is that couples who want to
divorce must be present at the National Registration Department Counter for divorce application
matters. Next, the couple must fill out an application form to be sent to the Marriage Tribunal by
bringing a copy of a valid marriage certificate. This application requires a sum of money to pay for the
processing and the responsible party will send a letter of counseling to both parties. The period
required to obtain this certificate is for 6 to 7 months.

In 2020, the civil court judicial department recorded 7901 divorce application cases for non -Muslims
within 1 year. The three states that recorded the most divorce cases were Selangor, Kelantan and
Pahang. After the implementation of the movement control period (PKP) it has had a major impact on
divorce statistics for non -Muslims. This is because during the PKP period, many companies began to
lay off workers because they could not afford to pay salaries due to the declining economic situation
and caused husbands who earn a living for the family to lose their source of income and then there
were fights between husbands and wives and triggered conflicts of misunderstanding with each other.

In conclusion, in Malaysia, there are laws and justice that we must follow to ensure the well-being and
peace of the country. Therefore, anyone who is a citizen must apply for divorce in court in accordance
with the prescribed procedure. Among them, we must provide important documents required during
the divorce application process. The documents provided must be genuine and not owned by others.
Responsible we have to apply for divorce in court and are not allowed to divorce at will without the
knowledge of the judiciary. Any divorce made without the knowledge of the judiciary will be fined in
accordance with the law that has been enacted.

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