COVID-19: Getting Divorced in the Syariah Court During COVID-19

05 May 2020

Cherie Tan

Following the Singapore Government’s announcement on Circuit Breaker measures, the Syariah Court announced that they would be closed from 7 April 2020 to 1 June 2020 to limit social activity.

Despite this, we continue to have clients reaching out to us seeking solutions to resolve their marital issues. Whilst this may not be applicable to all, one common complaint is that constantly being around each other at home causes friction and places strain on the parties’ relationship. Inevitably, the parties end up wondering if they should attempt counselling or end their marriage.

​In this article, we provide a broad overview of the Syariah Court divorce process and the steps that you and your spouse can take in the meantime.

Step 1: Speak with a Lawyer / Counsellor
It is important for you to know your rights before making any major decisions.

Contrary to the belief that lawyers always charge hefty legal fees, we offer a free consultation to help identify how we can assist you. Throughout this challenging period, we continue to be available via video-conferencing, teleconferencing, and email.

If you require marriage counselling, feel free to reach out to us too, as we can direct you to the right counselling agency.

Step 2: Registration
In order for a Muslim to apply for divorce at the Syariah Court, you and your spouse must be Muslims married under Syariah law. Furthermore, in order for the Syariah Court in Singapore to hear the case, either party must:

• be a Singapore citizen;
• have lived in Singapore for at least 3 continuous years before applying for a divorce; or
• be domiciled in Singapore (i.e. you treat Singapore as your permanent home) 

A copy of the Registration Form (which can be found at the Syariah Court’s website) must be submitted to the Syariah Court to start this process. The registration fee is S$100.

In view of the circuit breaker, you will not be able to submit fresh applications until the Syariah Court reopens from 2 June 2020.

Step 3: Mandatory Marriage Counselling / Parenting Programme
Upon registering your application at the Syariah Court, you will receive a referral letter from the Syariah Court to attend its Marriage Counselling Programme (“MCP”). Counselling will be conducted by approved counselling agencies such as PPIS, Jamiyah, Darul Arqam, etc. The MCP aims to provide you and your spouse with a platform to discuss your marriage and understand the impact of divorce.

The counsellor will also facilitate a Parenting Programme (“PP”) if you have at least one child below 21 years old. The PP focuses on co-parenting skills and your children's care arrangements after the divorce.

If your case was registered before the circuit breaker period, you will still be able to attend the MCP and PP at the approved counselling agencies via teleconferencing, if the particular agency provides that option.

Note: There may be several MCP and PP sessions pending your counsellor’s assessment and parties’ wishes.

Step 4: Reconciliation After Counselling
If you and your spouse decide to reconcile after counselling, you may inform the counsellor and the case in the Syariah Court will be closed.  

Step 5: Proceeding with Divorce application (i.e. Issuance Of Divorce Originating Summons by the Plaintiff)
If you and your spouse cannot reconcile, the Syariah Court will proceed to issue a Notice to Divorce Registration for you to file your divorce papers. You will need to prepare the Originating Summons and Case Statement (Form 7 for male plaintiff or Form 8 for female plaintiff) which states the reason for divorce. These documents must be served on your spouse personally or through your lawyer (if any). The filing fee of the Originating Summons is about S$135.

The Originating Summons and Case Statement must be filed in the Syariah Court with supporting documentation such as:

• Identity Card / Valid Passport
• Original Marriage Certificate issued by Registry of Muslim Marriages (“ROMM”)
• Children’s Birth Certificates
• Latest CPF statement showing Public Housing Withdrawal details
• Latest CPF statement showing the balance in your Ordinary, Special, Medisave, Retirement and Investment Accounts
• Latest HDB / Bank statement on outstanding housing mortgage loan
• Property Statement (applicable to private property owners only)

 
If you have children under the age of 21, a Proposed Parenting Plan or an Agreed Parenting Plan must also be filed together with the Originating Summons.

If you have a shared property, a Matrimonial Property Plan and information on housing arrangements must be filed together with the Originating Summons.

Note: The deadline to file the Originating Summons is 6 months from the date of the final MCP counselling session.

Step 6: Filing of Memorandum of Defence by the Defendant
Once the Originating Summons and Case Statement are served on your spouse, he/she will be required to file his/her Memorandum of Defence within 21 days from the date he/she receives the documents. At this stage, your spouse may decide to file a Counterclaim, so that the Court can grant the divorce based on his/her version of events.

Step 7: Mediation
A mediation date will be given to you and your spouse once step 5 is completed.

Both you and your spouse will be required to attend the mediation with your appointed lawyer (if any) to explore ways to settle the divorce and ancillary issues. If a settlement is reached, you and your spouse will attend before the President of the Syariah Court for a consent order to be recorded.

Upon the Court’s approval of the settlement, the divorce proceedings will be concluded.

Step 8: Pre-Trial Conference
If mediation fails, the case will be adjourned for a Pre-Trial Conference (“PTC”).

At the PTC, the Registrar of the Syariah Court will give directions for both you and your spouse to file affidavits and to prepare your respective cases for a hearing.

Note: There may be several PTCs depending on the complexity of your case. 

Step 9: Hearing
Under Muslim law, a marriage may be dissolved in 1 of the following ways:

• By the pronouncement of divorce (talak):
  • by the husband (via khuluk or independently of khuluk);
  • by the wife (talak tafweed); and
  • by the arbitrator (hakam); or
• By the husband’s breach of any written condition of marriage (taklik); or
• By annulment (fasakh) on proof of certain facts (e.g. the husband’s incarceration, impotence, cruelty, etc.); or
• By reason of invalidity of the marriage.

 
Divorce
At the hearing, the husband will be asked to pronounce talak. If the husband had previously pronounced talak, the Court will rule on the validity of the talak without having the husband to pronounce talak again. 

If an allegation has been made by the wife that the husband has breached any written condition of marriage (taklik) or that her marriage is to be dissolved on the ground of fasakh, the Court will have to determine whether there has been such a breach or whether the claim of fasakh has been made out before they can hear the ancillary issues such as nafkah iddah, mutaah, the outstanding emas kahwin, outstanding marriage expenses (hantaran belanja)  custody of children, division of matrimonial assets, etc.

If the issue of divorce cannot be resolved
A Hakam Session (appointment of 2 Arbitrators) may be ordered by the Court if the divorce cannot be resolved at the hearing for the following reasons:

• The husband refuses to pronounce talak;
• The evidence does not show that the husband has breached any written condition of marriage (taklik); and
• The marriage cannot be dissolved on the ground of fasakh. 

 
Ancillary Issues
The issue of child’s custody may be determined by the Syariah Court if it is disputed. A grant of custody will depend on factors such as:

• The parent’s ability to provide for the child;
• Recommendations of social support family agencies; and
• The child’s age and wishes.

A representative may be appointed by the Syariah Court to represent the interests of the child during discussions relating to the child’s custody and welfare.

Separately, unlike a civil divorce in the Family Justice Courts, the Syariah Court does not make any maintenance order in respect of wife or the children. In the Syariah Court, 2 forms of financial provision may be granted to the wife as follows:

• the nafkah iddah -  this is the maintenance for the period during which Muslim law forbids a divorced woman from remarrying (typically 3 menstrual cycles). The range is from S$200-S$1,500 per month; and 
• the mutaah -  this is a “consolatory gift” granted to an ex-wife upon divorce. The mutaah sum is determined based on a formula of a specific sum of money per day. For example, the Syariah Court may require a payment of the sum ranging from S$2.50-S$6.00 multiplied by the number of days the marriage lasted, or order the payment of a certain lump sum. 

Upon hearing the divorce and ancillary issues, the Syariah Court will deliver its judgment, either immediately or on another date. The divorce proceedings conclude once the judgment is delivered.

Note: There may be several hearings, pending the direction of the Syariah Court.

Step 10: Appeal
If either party is dissatisfied with any of the orders, an appeal can be raised to the Appeal Board within 30 days from the date of the order.


Cherie Tan
Associate Director, BR Law Corporation
cherietan@brlawcorp.com