IS SINGAPORE SYARIAH COURT FOLLOWING BRITISH DIVORCE LAW WHICH IS ARCHAIC AND NO LONGER DEFENSIBLE?
Baroness Ruth Deech in an article “Marry rich, divorce and become a millionaire” which appeared in the Straits Times on 21 September 2009, has called for a total reform of British divorce laws? Why? Because, she said, women walk away from marriages
with “many many millions” in divorce settlements.
Among the bizarre settlements that she quoted were:
(1)Heather Mills who got from Paul McCartney, a member of the British legend, The
Beatles, the sum of S$56.9 million;
(2)a hedge fund manager who had to pay his ex-wife S$12,000,000/- for a marriage which lasted 3 years and with no children; and
(3)an insurance tycoon who had to pay S$111 million dollars to his former wife.
Baroness Ruth Deech added that ‘whatever the purpose British family law serves, the protection of the family is certainly not one of them.’
This argument is also applicable in the context of Syariah Court, Singapore. In Singapore, some divorcing couples who are eligible to reconcile would like to reconcile after they have gone through a “cooling off period” of post divorce. But when the order of a large amount of compensation to be paid to the ex-wives were lingering on their minds, the husbands put off the thought of “ruju’” or to reconcile with their former wives.
The large payout was due to the argument that women get compensation because “a woman gave up her professional life to raise a family, so she is entitled to compensation.” Another common argument is that the woman contributed to her husband’s prosperity by freeing him of domestic chores, so she could get at least half of his wealth. These same arguments are used in British courts.
What about the majority of women who still insist to be gainfully employed even after they have tied the nuptial knots. What about wives who were provided with maids by their husbands to do the household chores and to look after their children?
What about the husbands who share the responsibilities of taking the trouble to drop the children to schools and sending the children to the extra curricular activities that the children had to attend during weekends? What about husbands who are in the habit or by nature like to keep their houses/flats clean and made valuable contributions regularly to assist in the household chores?
Are these wives also entitled to a large portion of the husbands’ wealth?
If the British family law is subject to criticism and no longer defensible and in the opinion of Baroness Ruth Deech needs a major reform, what are the compelling reasons for British family law to be chosen as a ‘model’ for Singapore Syariah Court? Or why is Singapore Syariah Court trying to emulate British family law? Isn’t it better for Singapore Syariah Court to adhere to ‘our own laws’ taught and brought about by our Prophet Muhammad s.a.w?
The decisions of the Singapore Syariah Court especially in the award of mut’ah have caused dissatisfaction, animosity and friction between divorcing couples. As a result the victims are the offsprings of the marriage. Divorced couples used the children as pawns to pursue their own selfish interest. It is also argued that in some cases the award of mut’ah is not complying with basic Syariah law principles.
We cannot deny the fact that Singapore Syariah Court is following British family law where the award of division of matrimonial assets is concerned because this is also one of the major complaint of the divorcing husbands. This similarity is found in both practices although the provisions in the Administration of Muslim Law Act of Singapore do not intend to do this.
Baroness Ruth Deech said that the British family law encourages sham marriages.
Where Singapore is concerned, I am of the opinion that apart from being used as sham marriages, Singapore Syariah Court’s practice encouraged or contributed to the inevitable increase in the number of divorce cases.
Let us take the case of a plaintiff wife who applied for divorce. When the plaintiff wife failed to provide the necessary proof for her ‘khuluk’ or ‘fasakh’ application to be granted by the Court, a hakam or arbitrator for each side is ordered by the Court to be appointed. In cases where a husband refused to utter talak because he wanted to save the marriage, but the wife insisted on the divorce, the appointed hakam is empowered to divorce the couple or the wife is delegated or ‘empowered’ to divorce herself from the husband to speed up the divorce process.
Following the above, the divorcing parties then appear before the judge(also called president of the Syariah Court) who will decide on the ancillary matters such as mut’ah, nafkah iddah(maintenance), and a proportion of the matrimonial assets including the issue of custody of children. Instead of the husband who received ‘khuluk payment’, the husband will be punished with the payment of mut’ah, iddah and a large proportion of the matrimonial assets.
The appointed hakam or arbitrator’s powers have been curtailed to a certain extent. A hakam cannot assist in the award of mut’ah, nafkah iddah let alone in deciding the quantum or the division of the matrimonial assets. A hakam exercising his power compelling the wives to go back to their loyal husbands has been unheard of for many many years.
Baroness Ruth Deech argued that it is timely now to restrict the leeway given to judges. This argument also applies in the context of Singapore Syariah Court. The provisions in Administration of Muslim Law Act are interpreted in such a way to favour the philandering wives.
No revolutionary changes are needed to the Administration of Muslim Law Act(AMLA) to decide cases so that the Court decisions are not repugnant to basic Islamic principles or not seen to be in favour of the philandering wives. What need to be changed is the approach that is to be taken in the interpretation of the provisions of AMLA so that the divorcing husbands are not prejudiced.
It is the judges’ prejudices that led to the bizarre award of large amount of mut’ah and a high percentage of the division of the matrimonial assets payable to the unfaithful wives.
It is also beyond our comprehension and it is also an insult to our intelligence to argue or to submit that the decisions of Singapore Syariah court of late, which are not fault based, are still within the ambit or the teachings of Islamic law. This is evident in a case where a wife who commits grave sins is awarded a large sum of payout while the holy Quran stated that the sinners should be punished according to the injunctions prescribed therein.
The holy Quran has never prescribed one set of laws to be applied in this world but another set of laws for Him to deal with His servants on the Day of Judgment.