Mpu 3322 - 7

• Choosing a life partner MPU 3322
• The marriage FAMILY INSTITUTION 3

• Marital roles
• Creating a long lasting
marriage
• Good parenting strategies
CHAPTER 10
• The dissolution of marriage
THE DISSOLUTION OF MARRIAGE
FAMILY PREPARED BY:
INSTITUTION AZURA MD NOR

Center for General Studies
2015
CHAPTER 10 : The Dissolution Of Marriage
Course Contents
TOPIC
TABLE OF CONTENTS
10.0 Introduction
10.1 Causes of Divorce
10.2 Divorce from Islamic and general perspectives
10.3 Claims after divorce
10.4 Custody of children
10.85Issues
 Abandon status
 Property issues
 Financial upkeep of children/spouse after divorce
 Domestic violence
Slide 2 of 31
Learning Outcomes
TOPIC
In the end of the chapter, students should be able to:

 Identify the concept of divorce from the Islamic and general
perspectives
 Explain the process of dissolution of marriage
 Describe the claims after the divorce
 Identify the effect of dissolution of marriage
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8.0 Introduction
TOPIC
INTRODUCTION
Divorce is a serious action from the social and religious point of view.
Many people criticize the Islamic law because it allows divorce
Marriage officially entered can be officially broken in only two ways’
THE DEATH OF ONE OF THE SPOUSE
DIVORCE
Lengthy separation or desertion, even if it does not result in divorce,
can also effectively terminate the marriage
The study of marriage dissolution can be approached in various ways
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8.0 Introduction
TOPIC
INTRODUCTION
Divorce is permitted as a lawful method to bring marriage contract to

an end.
This is reasonable and realistic view of such a sad situation where

marriage becomes impossible to continue and all means fails to bring
the couple together, by permitting divorce as a last resort.
It is true that sanctity of marriage is the essential basis of family life,

but it is also true that the two incompatible individuals cannot kept
together in a life of hell, for life.
It is therefore necessary to give due allowance for human weakness

and allow such people to part for good.
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TOPIC
8.1 CAUSES OF DIVORCE
• Violent behavior (both • Improper parenting behavior

men and women) • Putting other family first
• Prolonged or repeated • Use of drugs
absences • Irresponsibility (and unreliability,
• Infidelity including chronic lateness)
• Stinginess, or profligacy • Secretive behavior
• Bad temper • Contemptuous and rude and
• Selfishness scornful behavior
• Lying repeatedly • Cruelty
• Refusal of sex • Betrayals, such as promising to
have children, and then later
refusing
https://www.psychologytoday.com/us/blog/
better-divorce/202002/why-do-people-divor
ce BACK
Slide 6 of 31
TOPIC
The Romans used to believe that since marriage came into existence by
agreement and marital affection, so it was thought reasonable that it should
cease to exist when these conditions were no longer present. Accordingly, in
“Roman times there were two ways to bring to an end the marriage through
mutual consent [Divartium bonagratia] or at the will of either party
[repadium].
Christianity at one time in Europe ; used to preach “the two should walk hand
in hand up the steeps of life and down it’s? Declivities and green slopes then lay
themselves together for the final steep at the foot of the hill. Consequently there
should be no divorce, no divorce courts, and no books on the law of
divorce
.Chinese customary law : A husband could unilaterally divorce his wife if ;

Unfilial or disrespect to husband’s parents
Barrenness (which meant failure to bear a male child)
Slide 7 of 31
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TOPIC
In Arabia prior to Islam divorce was a frequent occurrence and every

individual took as many wives as he could afford and then divorced
them at his will. This tradition does not have been completely rejected
after the coming of Islam.
For Muslim law does not urge the spouses to lead a miserable life
when their marriage has proved a failure, but grants them the right to
separate. Other causes which may bring dissolution of marriage ;
missing of the husband, physical desertion, failure to support or maintain the wife and
cruelty.
So, divorce is not a recent phenomenon. It is as old as marriage itself.

Further there can be no divorce without a previous marriage.
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8.2 Definition of divorce from Islamic and general perspectives
TOPIC
8.2 DEFINITION OF DIVORCE FROM ISLAMIC

AND GENERAL PERSPECTIVES
English common law &

THE SOURCE OF
MALAYSIAN LAW
equity
Muslim law
Chinese customary
Malay custom laws
Other local customary law Indian Hindu

customary laws
Chinese Customary laws & Indian Hindu customary laws (had been recognised by
the courts in such subjects as marriage, divorce and inheritance
However, those non-Muslim customary laws have greatly lost their practical
significance since the commencement of the Law Reform (Marriage & Divorce)
Act 1976 on 1st March 1982
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TOPIC

ISLAMIC LAW
JEWISH LAW
Husband’s right of
divorce and limitations ENGLISH LAW PRIOR TO 1923
on a wife’s right
CHINESE CUSTOMARY LAW
REFORM UNDER THE LAW

REFORM (MARRIAGE & DIVORCE)
ACT 1976
Slide 10 of 31
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TOPIC

Husband’s right of divorce and limitations on a wife’s right
1 ISLAMIC LAW
Marriage is a contract (akad) determined by Islamic law that permits

physical relationship between a man and a woman.
It is an honourable way to regulate domestic life and to ensure the
continuation of a responsible generation.
When a contract (akad) is official, both husband and wife have rights and
responsibilities towards one another.
They have the right to live and to make plans for their life and future
together.
Unfortunately, not all marriages last forever. As the final solution and
the last resort, the dissolution of marriage or divorce is allowed.
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TOPIC

1 ISLAMIC LAW
If the feeling of love no longer exists between a husband and a wife, it is

improper to force oneself to continue living together.
What is the point of maintaining a relationship in an atmosphere of mutual
hate?
In fact, an unhappy marriage can cause disorder in society and even
disrupt national harmony. Islam, as a religion that priorities harmony and
tranquility in life, allows the dissolution of a marriage as one of the best
ways to resolve conflict between husband and wife.
Slide 12 of 31
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TOPIC

1 ISLAMIC LAW
There are 3 types of divorce under the Islamic law
BY MUTUAL
BY HUSBAND BY WIFE
AGREEMENT
Repusiation Ta’liq Khulu’

(talak) Fasakh
Ila’ Li’an
Zihar
Slide 13 of 31
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TOPIC

DIVORCE BY HUSBAND 1 ISLAMIC LAW
REPUDIATION
(TALAK)
TALAK ; Divorce made by the husband by
pronouncing one, two or three talaq either explicitly
or implicitly.
ILA’
This is mentioned in the al-Quran meaning: “Divorce
is [permissible] twice. Then, either keep [her] in an
ZIHAR acceptable manner or release [her] with good
treatment”. (al-Baqarah: 229)
Therefore, after three talaq, reconciliation or
remarriage between the husband and wife is no
longer possible.
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TOPIC

REPUDIATION
(TALAK)
TALAK ;
Remarriage is only allowed if the divorced wife has
ILA’ married another man and has had intercourse with
her second husband and the second husband then
voluntarily divorces her.
ZIHAR This refers to the meaning of the commandment from Allah
s.w.t: “And if he has divorced her [for the third time], then
she is not lawful to him afterward until [after] she marries a
husband other than him. And if the latter husband divorces
her [or dies], there is no blame upon the woman and her
former husband for returning to each other if they think that
they can keep [within] the limits of Allah . These are the
limits of Allah, which He makes clear to a people who know”.
(al-Baqarah: 230)
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TOPIC

REPUDIATION
(TALAK)
ILA’ ; when a husband takes oath on the name of
Allah s.w.t. or by mentioning the characteristics of
Allah s.w.t. to not have intercourse with his wife for
ILA’
the duration of four months or more or without
mentioning the length of time
ZIHAR
The commandment from Allah s.w.t.: “For those who
swear not to have sexual relations with their wives is
a waiting time of four months, but if they return [to
normal relations] - then indeed, Allah is Forgiving and
Merciful. And if they decide on divorce - then indeed,
Allah is Hearing and Knowing”. (al- Baqarah:226-
227)
Slide 16 of 31
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TOPIC

REPUDIATION
(TALAK)
ZIHAR ; Is when a husband likens the back of his
wife with the back of his mother (or any person that is
unlawful for him to marry).
ILA’
This matter is explained in the Quran meaning:
“Those who pronounce zihar among you [to
ZIHAR separate] from their wives - they are not
[consequently] their mothers. Their mothers are none
4but those who gave birth to them. And indeed, they
are saying an objectionable statement and a
falsehood. But indeed, Allah is Pardoning and
Forgiving.” (alMujadilah: 2)
Slide 17 of 31
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TOPIC

DIVORCE BY WIFE 1 ISLAMIC LAW
TA’LIQ
TA’LIQ: Is the postponement of divorce to another time or
FASAKH another act for example the husband telling the wife: “If you
go to a certain place then you will be talaqed (divorced).”
The divorce does not occur when the husband pronounces
LI’AN
ta’liq but will happen if the condition mentioned in the
pronouncement of ta’liq is breached. .
Slide 18 of 31
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TOPIC

TA’LIQ TA’LIQ: In Malaysia, the ta’liq divorce is the most common form
of divorce. After the akad, a husband is required to utter the ta’liq
FASAKH speech and sign the ta’liq agreement in front of the person
performing the marriage.
For example, in the Federal Territories, the ta’liq pronouncement
LI’AN
is: “I hereby admit that by leaving my wife (named) for four
consecutive Hijrah months or more, intentionally or forcibly
and I or my representatives do not give allowances to her in
that time or I inflicted hurt on her body and she then
complains to the Islamic Law Court and gives to the Islamic
Law Court that receives on my behalf one ringgit then at that
time falls the talaq in the form of talaq khulu’ [Islamic Family
Law Act Federal Territories) 1984, Islamic Family Procedure (form
and fee) 1985 (section 134(3)].
Slide 19 of 31
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TOPIC

TA’LIQ FASAKH: Is the annulment and dissolution of a marriage

that binds a husband and wife because of the existence of
FASAKH several issues that hinders the continuation of the marriage
marriage between muhrims (family members or
relatives who are forbidden to marry each other)
LI’AN
one of the two becomes murtad (an apostate)
the husband has disappeared,
the husband is imprisoned,
the husband hurts the wife in an extreme manner
(physical and mental abuse) or the likes.
Slide 20 of 31
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TOPIC

TA’LIQ LI’AN: Is when a husband takes oath in accusing his wife of

adultery and the wife takes oath denying her husband’s
FASAKH accusation.
The commandment from Allah s.w.t.: “And those who
accuse their wives [of adultery] and have no witnesses
LI’AN
except themselves - then the witness of one of them [shall
be] four testimonies [swearing] by Allah that indeed, he is of
the truthful. And the fifth [oath will be] that the curse of Allah
be upon him if he should be among the liars. But it will
prevent punishment from her if she gives four testimonies
[swearing] by Allah that indeed, he is of the liars. And the
fifth [oath will be] that the wrath of Allah be upon her if he
was of the truthful”. (an-Nur: 6-9)
Slide 21 of 31
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TOPIC

1 ISLAMIC LAW
DIVORCE BY MUTUAL AGREEMENT
KHULU’
It is also known as ‘divorce by redemption’ which means the

dissolution of marriage obtained by a wife by paying her husband
a valuable item whereby the rate of the item is based on an
agreement between the husband and wife or based on the
decision of the qadhi (judge)
Slide 22 of 31
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TOPIC

2 JEWISH LAW
THE JEWISH SCRIPTURE looked with disfavour upon divorce, and

nevertheless made provision for it.
Talmudic law, affirmed that a husband might divorce his wife of his
own volition, without regard to his wishes in the matter
the year 1000 C.E. - introduced a LEGAL EDICT, which prohibited, with
rare exception, divorce without the consent of the wife
the edict was accepted in most Jewish communities and come to have the
force of a rule of law.
Slide 23 of 31
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TOPIC

2 JEWISH LAW
Consequently the divorce nowadays is essentially consensual, requiring

the mutual consent of both husband and wife and did great deal to
protect wives against unjustified rejection by their husband.
The other aspect of the question of divorce, the problem of the husband
who unreasonably refuses to give a divorcement to his wife, has not been
resolved, leading to the plight of the “agunot”, those women anchored to
their husbands though not longer sharing their life with them.
Slide 24 of 31
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TOPIC

3 ENGLISH LAW PRIOR TO 1923

MATRIMONIAL CAUSES ACT 1857
Matrimonial jurisdiction was exercised by the Church, and the only decree pronounced
by the ecclesiastical court.
the modern decree of the parties judicial separation, terminating the cohabitation but
not enabling them to remarry
Under the 1857 Act, a substantive change in the law was that a new remedy of divorce a
vinculo matrimonii was given to a husband for his wife's adultery.
However, this new remedy was only given to his wife if her husband's adultery was
aggravated to certain ways, i.e. if he had been guilty of incestuous adultery(sumbang
mahram), or of rape, or of sodomy or more.
MATRIMONIAL CAUSES ACT 1923
Enabled a wife to divorce her husband for adultery without having to prove aggravated
circumstances such as cruelty or desertion, in the same manner as a husband was
entitled to divorce his wife for adultery
Slide 25 of 31
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TOPIC

4 CHINESE CUSTOMARY LAW
A husband could unilaterally divorce his wife on any of the following 7

grounds ;
Unfilial or disrespect to husband’s parents
Barrenness (which meant failure to bear a male child)
Adultery
Suffering from serious disease such as leprosy (kusta)
Jealously
Talkativeness
Committing theft
Slide 26 of 31
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TOPIC

4 CHINESE CUSTOMARY LAW
Under Chinese customary law, women had no grounds for divorcing

men, and widows ideally would not remarry;
Out of fidelity to their deceased husbands
They retained obligations to the ancestors of the family into which they had married
The form of the divorce must be made publicly known i.e, it should not be
made secret
Divorce had been pronounced by the husband at a gathering of his family,
and was also made known to the wife
The court accepted that the husband had lawfully divorces the wife and as
such she was not entitled to maintenance.
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TOPIC

5 REFORM UNDER THE LAW REFORM

(MARRIAGE & DIVORCE) ACT 1976
Customary divorces ceases to be recognised in Malaysia upon the

enforcement of the Law Reform (Marriage & Divorced) Act 1976.
Under this Act, divorce may be obtained by a husband or wife, or by
mutual consent, only through a decree granted by the court.
Either party to a marriage may present a petition for divorce on the ground
that the marriage has irretrievably broken down due to one or more of the
factors set out in section 54(1), which may be summarised as
Intolerable adultery
Unreasonable behaviour
Desertion for at least two years; or
Living apart for at least two years
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8.3 Claims after divorce
TOPIC
8.3 CLAIMS AFTER DIVORCE
Financial provision and matrimonial assets
Non-Muslim
Common law background
Matrimonial Causes Act 1857
Matrimonial Causes Act 1973
Matrimonial proceedings and Property Act 1970
Position under the law Reform (Marriage & Divorce) Act 1976
Muslim
Right to maintenance and mut’ah
Individual marriage on the financial consequences of divorce
Harta sepencarian or a share in assets acquired during marriage
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8.5 Effects of divorce on the couple
TOPIC
8.5 EFFECTS OF DIVORCE ON

THE COUPLE
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8.6 Effects of divorce on children
TOPIC
8.6 EFFECTS OF DIVORCE ON

CHILDREN
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8.7 Custody of children
TOPIC
8.7 CUSTODY OF CHILDREN
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8.8 Consolation in divorce
TOPIC
8.8 CONSOLATION IN DIVORCE
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8.9 Issues
TOPIC
8.9 ISSUES
4 DOMESTIC VIOLENCE
Issues
Factors lead to the problems in choosing a life partner
Effects
 Abandon status
 Property issues
 Financial upkeep of children/spouse after divorce
 Domestic violence
Slide 34 of 31
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8.9 Issues
TOPIC
8.9 ISSUES
4 DOMESTIC VIOLENCE
Issues
Domestic violence : under the domestic violence act 1994, the commission of
any of the following acts is defined as domestic violence;
1) Wilfully or knowingly placing or attempting to place, the victim in fear of
physical injury
2) Causing physical injury to the victim by such act which is known or
ought to have been known would result in physical injury
3) Compelling the victim by force or threat to engage in any conduct or
act, sexual or otherwise, from which has a right to abstain
4) Confining or detaining the victim against the victim’s will
5) Causing mischief or destruction or demage to property with intent to
cause or knowing that is is likely to cause distress or annoyance to the
victim by a person against;
1) His or her spouse
2) His or her former spouse
3) A child
4) An incapacitated adult Slide 35 of 31
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Activity
TOPIC
Test Your Knowledge
Answer the question.
Bride-price is the cost of marriage in the form of money, gold or diamond

1
from
a The groom & his family to the bride’s family
b
The bride to the groom’s
c The groom to the bride’s
D The bride to the groom’s family
Slide 36 of 31
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Activity
TOPIC
Test Your Knowledge
2 A phenomenon known as' DOWRY-DEATH occurred as a result of
A Refuse the discrimination of the women
B
Failure to pay the agreed dowry to the groom
C The virgin daughter feel pressured due to the dowry

accepted are considered as a purchase of a woman
D The bride failure to carry out the responsibility as a good

daughter in law
Slide 37 of 31
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Activity
TOPIC
Test Your Knowledge
3 Group discussion
B
A C
Engagement is
considered the first
step in marriage. Explain the
Define THREE (3) Describe FOUR (4) consequences of the
types of dowry objective of high dowry to the bride
engagement? and how to solve the
problem.
Slide 38 of 31
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Preview Next Session
TOPIC
Chapter 11
THE CONSEQUENCES OF
DIVORCE Introduction
Remorse-Elation
‘Iddah’ or waiting period
Maintenance in the waiting period
Custody of the children
Dowry settlement
Remarriage
Issues
Child custody disagreement
Figure 46
Slide 39 of 31
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• Choosing a life partner MPU 3322

• The marriage FAMILY INSTITUTION 3

FAMILY PREPARED BY:

INSTITUTION AZURA MD NOR

In the end of the chapter, students should be able to:

Divorce is permitted as a lawful method to bring marriage contract to

This is reasonable and realistic view of such a sad situation where

It is true that sanctity of marriage is the essential basis of family life,

It is therefore necessary to give due allowance for human weakness

8.1 CAUSES OF DIVORCE

• Violent behavior (both • Improper parenting behavior

8.1 CAUSES OF DIVORCE

.Chinese customary law : A husband could unilaterally divorce his wife if ;

8.1 CAUSES OF DIVORCE

In Arabia prior to Islam divorce was a frequent occurrence and every

So, divorce is not a recent phenomenon. It is as old as marriage itself.

8.2 DEFINITION OF DIVORCE FROM ISLAMIC

English common law &

Other local customary law Indian Hindu

8.2 DEFINITION OF DIVORCE FROM ISLAMIC

REFORM UNDER THE LAW

8.2 DEFINITION OF DIVORCE FROM ISLAMIC

Husband’s right of divorce and limitations on a wife’s right

Marriage is a contract (akad) determined by Islamic law that permits

8.2 DEFINITION OF DIVORCE FROM ISLAMIC

Husband’s right of divorce and limitations on a wife’s right

If the feeling of love no longer exists between a husband and a wife, it is

8.2 DEFINITION OF DIVORCE FROM ISLAMIC

Husband’s right of divorce and limitations on a wife’s right

There are 3 types of divorce under the Islamic law

Repusiation Ta’liq Khulu’

8.2 DEFINITION OF DIVORCE FROM ISLAMIC

Husband’s right of divorce and limitations on a wife’s right

DIVORCE BY HUSBAND 1 ISLAMIC LAW

8.2 DEFINITION OF DIVORCE FROM ISLAMIC

Husband’s right of divorce and limitations on a wife’s right

DIVORCE BY HUSBAND 1 ISLAMIC LAW

8.2 DEFINITION OF DIVORCE FROM ISLAMIC

Husband’s right of divorce and limitations on a wife’s right

DIVORCE BY HUSBAND 1 ISLAMIC LAW

8.2 DEFINITION OF DIVORCE FROM ISLAMIC

Husband’s right of divorce and limitations on a wife’s right

DIVORCE BY HUSBAND 1 ISLAMIC LAW

8.2 DEFINITION OF DIVORCE FROM ISLAMIC

Husband’s right of divorce and limitations on a wife’s right

DIVORCE BY WIFE 1 ISLAMIC LAW

8.2 DEFINITION OF DIVORCE FROM ISLAMIC

Husband’s right of divorce and limitations on a wife’s right

DIVORCE BY WIFE 1 ISLAMIC LAW

8.2 DEFINITION OF DIVORCE FROM ISLAMIC

Husband’s right of divorce and limitations on a wife’s right

DIVORCE BY WIFE 1 ISLAMIC LAW

TA’LIQ FASAKH: Is the annulment and dissolution of a marriage

8.2 DEFINITION OF DIVORCE FROM ISLAMIC

Husband’s right of divorce and limitations on a wife’s right

DIVORCE BY WIFE 1 ISLAMIC LAW

TA’LIQ LI’AN: Is when a husband takes oath in accusing his wife of

8.2 DEFINITION OF DIVORCE FROM ISLAMIC

Husband’s right of divorce and limitations on a wife’s right

DIVORCE BY MUTUAL AGREEMENT

It is also known as ‘divorce by redemption’ which means the

8.2 DEFINITION OF DIVORCE FROM ISLAMIC

Husband’s right of divorce and limitations on a wife’s right