What is Fasakh?
The term ‘fasakh’ in Arabic means to rescind or annul an agreement or bargain. Fasakh, in the context of Muslim matrimonial law, concerns the annulment (or rescinding) of marriage on permitted grounds, (i.e. permissible according to Muslim Law).
A fasakh (or annulment) is brought about by an order of the Court.
The Law in Singapore
According to sections 49(1)(a) to (f) of the Administration of Muslim Law Act (Cap. 3) (known as AMLA), a wife is permitted to apply to the Court for an order of fasakh which will annul her marriage to her husband, on one or more of the following grounds:
- The husband has neglected her or failed to provide for her maintenance for a period of 3 months;
- The husband has been given a prison sentence of 3 years or more and the sentence is final;
- The husband failed to perform his marital obligations for a period of one year, for whatever reason(s);
- The husband was, at the time of the marriage, impotent – and continues to be so
- The husband is insane, or suffers from a chronic disease whose cure would be lengthy or impossible, and which as a result makes the continuation of the marriage injurious to the wife;
- The husband treats the wife cruelly, that is to say:
- He habitually assaults her or makes her life a misery by the cruelty of his conduct, even if that conduct does not amount to physical ill-treatment;
- He associates with women of ill-repute or leads a life which is infamous;
- He attempts to force her to lead a life which is immoral;
- He prevents her from observing her religious profession or practice;
- He cohabits with another woman who is not his wife; or
- If he has more than one wife, he does not treat her equally or fairly in accordance with Muslim law requirements.
Furthermore, in section 49(1) (g) of AMLA, permission is given to a husband or wife to make a Court application for fasakh in order to annul his or her marriage “on any other ground which is recognised as valid for the dissolution of marriage by fasakh under the Muslim law.” Examples of these other grounds include some sort of physical defect in husband or wife which prevents sexual intercourse, some injurious or infectious disease such as HIV that the husband or wife has, the disappearance of the husband or wife and whose whereabouts are unknown, or the non-consummation of the marriage.
The Principal Rules of Fasakh
- Fasakh differs from a divorce due to khuluk, which only the wife may apply for. Either the husband or the wife my apply for a divorce by way of fasakh, depending on the ground(s) in section 49 of AMLA which they rely upon in their application. Alternatively, a talak may be pronounced on a wife by her husband, instead of applying for a divorce by fasakh.
- The granting or dismissal of any divorce application by fasakh rests solely in the hands of the Judge who hears the application. The Judge will exercise their discretion once they have heard the case and accepted the evidence of the husband, wife and 2 adult male Muslim witnesses. Section 49(4) of AMLA sets out the requirement for witnesses in fasakh.
- The husband is not required to pronounce the divorce (talak) in a divorce by way of fasakh. Instead, the marriage will be annulled by a Court order.
- A divorce brought about through fasakh cannot be revoked through reconciliation (rujuk). A divorce through fasakh brings about a talak bain sughra. This means that if the husband and wife want to reconcile and be together again after their fasakh divorce, they have to first remarry and undergo the solemnisation (nikah) ceremony again.
- A divorce through fasakh is not considered to be a talak and does not count as such. It does not reduce the number of talak remaining in a marriage. For instance, in the past a husband may have divorced his wife twice, on two different occasions. If the couple are subsequently divorced by fasakh, this last divorce will not count as the third or final talak or talak bain kubra. In essence, following this last divorce (through fasakh), the husband can immediately remarry the wife after the designated waiting period (known as iddah).
- A wife, divorced by way of fasakh, will not be entitled to receive nafkah iddah, because there exists no iddah period during which she and her husband can reconcile. In addition, the view is held by some Islamic scholars that a wife who has been divorced through fasakh should not be entitled to receive mutaah. However, it is our view that the Court has the discretion to award mutaah to the wife, in particular in cases where the reason for the annulment had not been brought about or caused by any fault of the wife.
- Finally, the issues of division of matrimonial assets and custody of minor children will not be affected by a divorce by way of fasakh. These issues will be decided the Court according to the established practices and principles.