Divorce can take place either by way of these methods:
1. Consensus or Mutual Agreement to divorce between husband and wife.
The spouse has agreed to separate officially after one party either the wife or the husband has forwarded an option to divorce and the other party, agrees to it. Some of the couples who have agreed to divorce will also prepare some agreements with regards to custody of the child/children or jointly acquired property or mutaah (compensation to the wife).
How to file for jointly /consensus petition for divorce?
The couple/parties can prepare and file the summons in Court, and in Selangor we have fast track case involving this kind of divorce whereby the case shall be heard before the Judge within 6-9 hours after the summons has been filed. It means that if you file the summons early in the morning, the Registrar will fix the hearing in the afternoon for the case to hear before the Judge. Certificate of Marriage will be canceled by the Court and the Court Order for annulment of the marriage shall be produced on the same day or tomorrow. It was prescribed under Section 47 of Islamic Family Law Enactment (Negeri Selangor) 1991 and the husband shall pronounce the talaq against the wide to dissolve the marriage.
2. On the other hand, if both parties or the couple cannot come to an agreement for the divorce, then one party either the wife or the husband (normally the wife) shall prepare a single petition for divorce. The wife can ask for divorce either one of the methods:
a) Fasakh: (Annulment of Marriage)
The wife must prove to the Court the reasons why she wanted to apply for fasakh. Normally, in Islam the wife can ask for fasakh with one of these reasons:
I. No maintenance (Nafkah Zahir) for 3-4 consecutive months given by the husband to her and children;
II. The husband has put the wife in physical or mental torture;
III. The marriage is not consummated for almost a year;
IV. The husband has been sentenced or imprisonment for a period of three years or more;
V. The husband is impotent and the wife does not know about it at the time of the marriage;
VI. The husband has abused the wife and asked her to commit an illicit ways/jobs;
VII. The husband has undergone immoral/illegal acts for a long time and does not have the intention to repent and any other reasons as what was prescribed under Section 52 Islamic Family Law Enactment (Negeri Selangor) 1991 and Hukum Syarak.
The wife needs to prove as prescribed under the pronouncement of Ta’liq words uttered by the husband during the solemnization of the marriage whether the husband did not provide maintenance (zahir and batin more than 3 months or 4 months consecutively), or left the wife more than 4 or 4 months, or the husband has endured physical torture to the wife/assault the wife physically and the wife has complained to the Religious or Syariah Court Officer/ Judge (Qadhi), after being confirmed that there is a prima facie case (sabitan), the marriage shall be automatically annulled and terminated by the order of the Judge.
c) Khulu’/ redeemable divorce:
The wife asked the Judge to annul or terminate the marriage by redeeming herself and pay the minimum amount of RM1 when the husband does not agree to voluntarily pronounce a talaq. If the husband does not agree with the amount, or does not appear before the Court, or there is any possibility of reconciliation, the Court will appoint Conciliation Committee (either by Jawatan Kuasa Pendamai/Hakam) to act for both parties under Section 47 Islamic Family Law Enactment 1991. It was prescribed under Section 49 Islamic Family Law Enactment 1991.
Summons filed: The mentioned date is fixed within 21 days / earlier. If the husband resides outside Court jurisdiction, a Court Order is required for service of summons outside the jurisdiction.
First mention/case management before registrar: Service of the summons within one /one-half month.
Second mention/case management: To update Court on the service of the summons to the husband. If we managed to serve it earlier then Affidavit of Service shall be filed before the next mention date.
Fourth mention/ case management: If we did not manage to serve the summons earlier or the summons cannot be served by hand to the husband, then we shall notify Registrar and ask for another date to file the Affidavit of Service of Affidavit of Non Service together with the application to serve the summons by way of substitute service ie. Advertisement, Posting to last known address of the husband and posting to the Court’s Notice Board.
Fourth mention/case management: If we did not manage to serve the summons earlier or the summons cannot be served by hand to the husband, then we shall notify Registrar and ask for another date to file the Affidavit of Service of Affidavit of Non Service together with the application to serve the summons by way of substitute service ie. Advertisement, Posting to last known address of the husband and posting to the Court’s Notice Board.
Fifth mention/case management: To update court the filing of Affidavit of Service and defense by the husband of Affidavit of Non-Service and application for substitute service if the summons cannot be served by hand/failed to serve by hand. The hearing of substitute service application shall be fixed before the judge next month.