DIVORCE, CUSTODY, AND SUPPORT OF CHILDREN AND EX-SPOUSES
The Sisters in Islam, liberal rights activists, and conservative Islamic forces also wrangle over several aspects of sharia law provisions pertaining to divorce, custody, and financial support.
As noted above, violations of ta’liq in the marriage contract or change of religion may lead to dissolution of the marriage. In addition to conversion to Islam within a marriage of a non-Muslim couple, renunciation of Islam in a marriage between two Muslims may also dissolve the marriage once confirmed by the sharia court. Section 130 states that any spouse who “by deception makes himself or herself an apostate in order to annul his or her marriage commits an offence and shall be punished with imprisonment not exceeding six months.” Much of the controversy surrounding divorce is related to husband-initiated unilateral pronouncement of divorce or talaq. There are seventeen subsections to the standard provision on divorce by talaq in which the religious officials and sharia courts attempt to control and supervise pronouncements of divorce by husbands. They initially attempt to organize suluh or mediation with conciliatory committees to effect reconciliation between the husband and wife. However, if this fails the sharia court will direct the husband to pronounce a talaq before the court. A husband can also apply for divorce by li’an, in which he claims under oath that his wife committed adultery; even if she denies it in her oaths, the court accepts the husband’s oath after “he invokes the wrath of God should he be lying” (Black, Esmaeili, and Hosen 2013, 138). A woman can apply for a khul’ divorce or cerai tebus talaq, in which she pays an agreed-on amount to her husband and in turn the court orders him to pronounce a divorce by redemption. The court can appoint a conciliatory committee that may draw out the process of the wife attaining this form of no-fault divorce. Women more commonly apply for at-fault divorce (fasakh) based on Mālikī opinions that extend the valid grounds beyond the more limited position of the Shāfi’ī school. Moreover, one of the subsections of Section 52 opens up the women’s application of fasakh “to any other ground that is recognized as valid for dissolution of marriages or fasakh under Hukum Syara’.” SIS and some other women’s groups have complained about both long processes when women apply for divorces and “unfair bargaining pressures” during negotiations aimed at compelling women to forfeit some of their interests in mut’ah (obligatory divorce gifts from the husband), ‘iddah maintenance (paid for three months after divorce), and joint marital property (Nik Noriani 2003, 37).According to the sharia family law enactments, a husband is required to pay nafkah to his ex-wife for the three-month ‘iddah period and for all children of the marriage until they reach eighteen years of age. The amount of maintenance the man is required to pay is based primarily on an assessment of the means and needs of the parties involved, and the courts have the power to vary the amount of maintenance as circumstances change. Maintenance for the divorced woman includes entitlement to stay in the home where she lived when she was married or another suitable accommodation during the period of ‘iddah. The sharia court may extend financial support for children beyond the age of eighteen to enable them to pursue higher education or training. A man willfully failing to comply with the court order for maintenance may be fined or imprisoned. However, Zainah Anwar told me that a high percentage of fathers do not pay maintenance despite having the money, and the sharia courts rarely punish them for being in contempt of court. She argues that the fact that men are not performing their traditional duty as providers—and, instead, women are often playing this role nowadays—necessitates a change in the traditional conception of marriage and the framework of sharia family laws.
Finally, the standard sharia family law enactments give custody (hadhanah) of an infant to the mother until a male child reaches the age of seven and a female child reaches the age of nine.
If a mother applies to extend this period of custody, the court may allow her to retain custody until a male child reaches nine and a female child eleven. After this time custody shifts to the father until the child has reached the age of mumaiyiz, or discernment of right and wrong, which can be as early as seven for boys and nine for girls.19 At the age of mumaiyiz, the provision entitles the child to make his or her choice of living with either of the parents, unless the court orders otherwise. The sharia court judges I interviewed tell me that they try to allow the children to make their own decisions without any unfair interference from the parents. According to Federal Territories Shariah Lower Court judge Hakim Suhaily, “There is no right of the father or mother to go against the children’s decision.... If the children choose the father, we just go with what the children prefer to do. We cannot reject... because in Islam everyone has their own rights. It is haram [forbidden] if other parties try to ignore the other’s rights.... After the age of mumaiyiz the children have their own rights.” In Alor Setar, Kedah Shariah Higher Court judge Syeikh Mohd Roze bin Abdul Wahab shared a few of his recent files from child custody cases. In one case, three children beyond the age of mumaiyiz chose to stay with their mother and the court arranged visitation for the father; in another case, with two children, one selected the mother and the other selected the father.Many liberal rights organizations and activists are clamoring over several highly publicized cases of child custody, such as that of S. Deepa and Izwan Abdullah described above, that involve the conversion of one of the parties to Islam. The standard sharia family law provision states that one of the main qualifications necessary for a mother to be entitled to child custody and for a father to be the guardian is that she or he be a Muslim. Most religious officials in sharia courts tend to favor giving custody to the Muslim parent in these cases of conversion to Islam within civil law marriages.
Sharia courts recognize that the marriage has been dissolved and give custody of the converted, or registered as Muslim, children to the parent that has become Muslim. This appears to be consistent with the primary necessity of sharia (maqṣid al-sharī‘a), which according to the well-known Shāfi’ī scholar Abū Ḥāmid Muḥammad al-Ghazālī (d. 1111 CE) is preservation of religion. However, the Conference of the Perlis State Fatwa Committee issued a fatwa in April 2015 on the issue of “The Right of Child Custody for Parents of Different Religion” that conflicts with the standard provision across the states of Malaysia.20 They decided that in these cases the right of custody should not be based on the religion of the mother or father, but rather on guaranteeing the maslahah of the child in terms of “moral and emotional growth and development.” The Muslim parent has the right and is obligated to introduce Islam to the child regardless of whether he or she has custody. Thus, the mother has custody of any breastfed child, and then custody belongs to whichever parent can best nurture the growth of the child. Just as in the standard provision, after the age of mumaiyiz, the child is given the right to select the parent to have custody. It is yet to be seen whether any other state fatwa committees or the National Fatwa Committee will rule on this specific kind of custody case.More on the topic DIVORCE, CUSTODY, AND SUPPORT OF CHILDREN AND EX-SPOUSES:
- In modern family law, issues relating to the custody of children loom large, particularly in the aftermath of divorce.
- Child custody
- SECTION 4. The Property of the Spouses
- SECTION 2. Relations between Spouses
- Children with special health care needs (CSHCN) are those children who have been or are at risk for a chronic physical, developmental, behavioral, or emotional condition
- Classical Rome had a very liberal divorce policy (as did Greco-Roman Egypt; see Part III). By the first century B.C.E., women who were not married with manus [see Chapter 1, Part II.B.] had the right to divorce their husbands unilaterally, and eventually the same right was enjoyed by women married with manus.
- CASE 111: Self-Custody
- Ages of marriage and custody
- SECTION 3. Custody and Maintenance
- A Divorce documents from Roman Egypt
- Post-divorce maintenance