Let’s Talk Money – What can you Claim from a Divorce Proceeding?
Divorce proceedings can be emotionally taxing, bring about uncertainties to one’s lifestyle and even more so if you have children. The complications arise when you deal with the second stage of the divorce, that is, the financial aspect. Where in certain cases, couples have had an amicable divorce proceeding up until the second portion.
It is, therefore, a good idea to understand what each party can claim and cannot claim beforehand. As such, this article gives a brief idea of the monetary means that one can recover in both a Syariah and civil divorce.
Maintenance – What can you Claim?
A. Maintenance of Husband/Wife
Syariah Law Divorce
In a Syariah Law divorce, as the Syariah court does not give out maintenance orders to the wives, the wives rely on the two financial provisions under Syariah Law. That is:
- Mutaah refers to a consolatory gift from the husband to the wife representing their appreciation for their efforts during the time of marriage.
- Iddah refers to the time period which women cannot re-marry after a divorce
- Nafkah iddah refers to the monetary provision that the ex-husband provides the ex-wife with during this time period.
However, the husband will not be entitled to get financial support from the wife.
In a civil marriage, it is not always the situation where the husband must provide maintenance to the wife.
In fact, the court has in instances decided that the wife should not be provided with maintenance due to her being more than self-sufficient than the husband.
As such, both wife and husband (if he incapacitated) can claim maintenance from each other depending on the circumstances of the marriage. The factors can include:
- The past, present and future income, earning capacity, property and other financial resources of both spouses;
- The dependent spouse’s (and children’s) financial needs and responsibilities;
- The age of the spouses;
- Whether the spouse is physically or mentally disabled;
- Contributions the spouses made to the well-being and care of the family;
- The standard of living the family enjoyed during the marriage;
- This is because in certain instances, where one party has been accustomed to a standard of living, it would not be reasonable to reduce that standard very drastically.
- The duration of the marriage
- In typical circumstances, a marriage of 6-8 years is considered short while a marriage of 30 years would be considered a long marriage.
B. Maintenance of Child
Syariah Law Divorce
In a Syariah Law divorce, the child’s maintenance is made not under Syariah Law but in the Family Justice Courts.
Civil & Syariah Law Divorce
According to section 68 of the Women’s Charter, it is the duty of both parents to provide maintenance of the child.
- This duty is provided for the child until they reach 21 years of age or until they finish their first university degree.
How much one can get for child maintenance is dependent on several factors:
- How much the child requires financially;
- The income, earning capacity, property and other financial resources of the child;
- Any physical or mental disability that the child suffers from;
- The age of the spouses and the duration of the marriage;
- The standard of living enjoyed by the child; and
- How the child was being educated or trained and the expectations of the child’s parents
Matrimonial Assets – How is it Divided?
Syariah Law Divorce
In deciding how to divide the property between the parties in a just and equitable manner, the court will take the following factors into consideration. This is stated in the Administration of Muslim Law Act 1966 section 52(8):
- The amount of contribution each party had put into acquiring, improving or maintaining the property;
- Any debt or obligation incurred by either party for the parties’ joint benefit or for the benefit of the child;
- Needs of the children of the marriage, if any;
- The amount of contributions each party had put into caring for the home or family, including elderly family members;
- Agreements made between parties with regards to the property with the intention of divorce;
- The time period one party provided another by giving free rent or any other form of benefit;
- The support one party gave another to help in their business or job. Where this support can be financial or non-financial;
- The income, earning capacity, property and other financial resources which each of the parties has or is likely to have in the foreseeable future;
- The financial needs, obligations and responsibilities which each of the parties has or is likely to have in the foreseeable future;
- The standard of living enjoyed by the family before the breakdown of marriage;
- The age of each party and the duration of the marriage;
- Any physical or mental disability of either of the parties;
- The value to either of the parties of any benefit (such as a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring
Like Syariah Law, the civil law divorce proceedings also have their own set of factors that the Court considers before deciding on the proportionality and division of the matrimonial assets between parties. This is stated in the Women’s Charter 1961 section 112(2):
- The extent of the contributions made by each party in money, property or work towards acquiring, improving or maintaining the matrimonial assets;
- Any debt owing or obligation incurred or undertaken by either party for their joint benefit or for the benefit of any child of the marriage;
- The needs of the children (if any) of the marriage;
- The extent of the contributions made by each party to the welfare of the family, including looking after the home or caring for the family or any aged or infirm relative or dependant of either party;
- Any agreement between the parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce;
- Any period of rent-free occupation or other benefit enjoyed by one party in the matrimonial home to the exclusion of the other party;
- The giving of assistance or support by one party to the other party (whether or not of a material kind), including the giving of assistance of support which aids the other party in the carrying on of his or her occupation or business; and
- The matters referred to in section 114(1) so far as they are relevant
As can be observed, the factors used to decide on the division of matrimonial assets are very similar to the ones stated in the Muslim Law Act 1966 and the Women’s Charter 1961.
Despite the two marriages being under two different legislations, it shares its similarities in certain aspects when it comes to divorce.
Should you require legal representation, kindly contact Gloria James-Civetta & Co for a free 30 minute consultation with one of our family lawyers.