Saturday, September 30, 2006

SYARIAH COURT HEARS MORE DIVORCE CASES, MOSTLY MESSY, NASTY & UGLY

Who said marriage is made in heaven? With the greater number of couples terminating their wedding vows each year in Malaysia, its clear that divorce rates especially among muslim couples is on a rise during this past two years or so although the manner to divorce among muslims by syariah law to accepts a divorce, the man need to state once, twice or three times "I divorce you" to his wife in the presence of an another adult. Currently, even mobile phone text messages saying "I divorce you" sent to the wife seem to be entertained by certain quarters. Statitics reveals that last year alone, 15,000 muslim couples terminated their marriages compared to their non- muslim counterparts (the chinese and indians) of about 3,000. It was also revealed that divorce is turning uglier and becoming more public. Couples who are parting are resorting to reveal to the public their bedroom secrets. But the main reasons among most couples is, no other than MONEY, MONEY, MONEY. It is also felt that during these recent years, the figure had been increasing termendously and family lawyers are stating that divorce cases are becoming very messy and 'dirty'.

A marriage is termed as a partnership between two individuals, a male and a female. If one finds their partnership is not working out as expected, a break is eminent, which is called a divorce. That is what, one ought to do. Then, you need to seek a new life partner who would be more compatible with one another or remain single. But, whatever said, it is far better to try to reconcile the differences and save the existing marriage. If only reconciliation really fails, it is far better to divorce, but do it amicably and gracefully.

An on-going case that is receiving wide news coverage involves Dr Rozita Halina Hussein, the daughter of our former prime minister Tun Hussein Onn, with Dr Shafiq Sit Abdullah. After 15 years of marriage, Dr. Rozita filed for a divorce sometime in 2003. Both sides had very ugly accusations against each other, such as allegations of infidelity, of faking illnesses and of disregarding parental duty which had been bandied at the Syariah Court. By the sound of it, the trail of acrimony could continue when the court hearing continues this coming monday. While the rest of the Malaysian divorces are not making it into the print media, things are still pretty nasty out there in a divorce court.

Syariah lawyers claim that couples go to great lengths to humilate each other in court, by making false accusations or to the extend of hiring someone to admit having an affair with the other partner and these are committed by the rich, who have millions in their bank accounts and many valuable properties, and the parting partner would claim a stake on these assets. The greater their assets, the uglier and nastier the divorce proceeding would turn out to be. Usually in these sort of cases, the husband would have had a second marriage with a younger woman. In seeking revenge, the first wife will stake a claim for everything and would go to such extends to do anything to succeed in her claims. The fight will be over nafkah (maintenance) for their children, custody of the children, the properties and payment of mutaah (compensation) to the wife. There was an instance where the woman had a self-inflicted bruises on her face and lodged a police report claiming her husband had abused her, but on further examination by the trial judge, it was revealed that her husband was actually outstation. There were instances where the husband would have hired someone to admit that he was having an affair with his wife and likewise, the wife would have engaged some other woman to admit that she is the husband's mistress.

Another issue of contention is the payment of mutaah or compensation to the wife. The wife can ask for anything from RM100 to millions of ringgit. The amount will depend on the wife’s status, her contribution to the family and the husband’s capability. However, the decision on the amount will be decided by the court. Under the Islamic Family Law, mutaah cannot be awarded if the wife is an adulterer, leads a wild lifestyle or is an unfit mother. The husband will find ways to make the wife look bad to ensure that he does not have to pay.

But there are circumstances where divorce cases among middle income earners are usually solved amicably unless there is interference from a third party. The third party being parents, siblings, relatives and friends from either side. More often than not, the couple would rather listen to these people than to their lawyers. Especially when it comes to custody of the children and division of the matrimonial assets (harta sepencarian). In illustration there was a case where the parents-in-law made up stories about the husband, accusing him of abusing and neglecting his wife and children and not supporting them financially.Usually family lawyers would advise their clients about the consequences of lying in court, but some of them refuse to listen and do things their way without telling them, and these lawyers are caught by surprise by their actions.

While in the civil court, between 30 and 40 divorce cases are heard weekly in Kuala Lumpur. The intention of the Law Reform (Marriage and Divorce) Act 1976 which came into force in March 1982 was to make divorces less contentious. The concept of "consent divorces" (joint petition for divorce by mutual consent) was introduced where the law tries to encourage couples to reach a settlement on all issues with the intention of a removal of fault (blaming the other party for the breakdown of marriage). It doesn’t matter whose fault it is since the marriage is no longer there, but one of the requirements of a "consent divorce" is proof that the marriage has irretrievably broken down using facts such as adultery and unreasonable behaviour, which are faults, so in effect, the legislation had not done away with the concept of fault in divorces.

Lawyers involved say that whether couples had an amicable divorce or not depended on the parties involved. If both parties have the objective of keeping things amicable, then it will be easy. Usually problems arose if one or both parties went into court looking for absolute justice for themselves only and not a resolution of the dispute. Parties must go to court with a greater objective in mind, and that includes considering the interest of the children, as they are the prime victims of any divorce.

There are three issues that could make divorces contentious, firstly about division of property. If the stakes are high in terms of property division or amount of asset that they have, then it has the potential to get ugly. Usually when property is large, then people start throwing in other issues to embarrass the other party.

The next issues are children and the inability of one party to let go of the other.Usually it’s the woman who has a problem of letting go, because she feels that she had invested so much in their marriage like "She’s made him into the man he is, and suddenly now he wants to go off to be with a pretty young thing, to enjoy the fruits of years of building up their fortune. Whereas they could have been very poor in the beginning. So she won’t give up so easily."

Some divorces start out contentious, but may eventually end up with a settlement based on what would be the best for both parties. Sometimes to avoid a long-standing trial, parties may use certain formulas based on existing cases on how division is arrived at.

Lawyers who frequently handled divorce cases cited that the couples fought over custody of the children or property.Then there are the cases where things get ugly after the divorce. This is when their ex-husband defaults on child maintenance, and it’s usually not because he cannot afford to pay but he just refuses to pay. If the wife wants custody of the children, she should deal with the finances. The ex-husbands look at maintenance as enriching the wives. They think it’s their wives who suffer but it’s actually the children.