Women’s Financial Rights After Divorce
'Wages’ for household chores
A woman can claim that she is entitled to a share of her former husband’s property because the household chores she conducted while married to him were not for free but instead, she had desired the wages for them.
Division of matrimonial assets
The court may order any assets acquired by the parties during the marriage (harta sepencarian) either through their joint efforts or by the sole efforts of one party to the marriage to be divided between them or any such assets to be sold and the proceeds of the sale be divided between the parties:
- Where the assets were acquired by the joint efforts of the parties, the court must have regard to:
- the extent of the contributions made by each party by way of money, property or labour to-wards acquiring the assets;
- any debts owed by either party that were contracted for their joint benefit; and
- the needs of any minor children of the marriage. Subject to these considerations, the Court will order equal division;
- Where the assets were acquired by the sole efforts of one party to the marriage, the court must have regard to:
- the extent of the contributions made by the party who did not acquire the assets, to the welfare of the family by looking after the home or family; and
- the needs of any minor children of the marriage. Subject to these two considerations, the court may divide the assets or the proceeds of sale in such proportions that the Court thinks reasonable, but the party by whose efforts the assets were acquired will receive a greater proportion of the assets.
The court may order the division of matrimonial assets (harta sepencarian) acquired through the parties’ joint efforts, having regard to the extent of contributions made by each party towards acquiring the assets, debts owed by the parties and the needs of minor children to the marriage. For assets acquired by the sole efforts of a party, the court may order division of the assets having regard to the other party’s contributions towards looking after the home or caring for the family, though the party by whose efforts they were acquired shall receive a greater proportion. Even though a woman may not have contributed financially to the acquisition of the marital assets, her role as wife and mother are considered as indirect contributions and she is usually granted at least a third of the share of assets.
The Shari’ah court may order any matrimonial assets to be divided between the parties or any such asset to be sold and the proceeds of any such sale to be divided between the parties. When making such an order, the court is obliged to consider what is “just and equitable” and take into account all considerations including the extent of the contributions made by each party to the welfare of the family, including:
- the extent of the contributions made by each party in money, property or work towards acquiring, improving or maintaining the property;
- any debt owing 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.
“Matrimonial assets” is defined widely to include:
- the matrimonial home;
- business assets, including commercial properties used for business or investments;
- savings and other investments, including cash in bank, share portfolio, the state managed compulsory retirement savings plan known as the Central Provident Fund (CPF) and pensions;
- employment benefits such as pension, gratuity, stock options, insurance policies;
- vehicles; and
- jewellery other than what may be of insignificant value or possessing only sentimental value.
Matrimonial asset property regimes
Property acquired during the marriage are considered joint property of the husband and wife. Matrimonial assets may be tangible or intangible. Upon divorce, each party has the right to receive half of the matrimonial assets unless they had agree otherwise in the marriage contract.
Equal division of property and assets acquired during the marriage is the default property regime.
Spouses have the option of choosing a matrimonial asset regime that ensures that they have joint ownership of assets which are specifically intended for the family’s use.
Consolatory gift or compensation (mu’tah)
The court has the power to order a man to pay his former wife a consolatory gift or compensation’ (mut’ah) in addition to the financial maintenance he has to pay her during the waiting period after the divorce (iddah). The amount of compensation varies in each country and may be based on a multiple of the iddah maintenance or what the court deems as fair and just.
Wives will almost always receive mut’ah payment even if she is the party petitioning for the divorce or she has “misconducted” herself. Arguments that a wife is “disobedient” (nusyuz) have generally not been accepted by the court to disqualify a wife from being entitled to mu’tah payment.
Compensation for unreasonable divorce
If the court finds that a man has divorced his wife in an arbitrary, unfair or unreasonable manner, the court can order him to pay his former wife compensation for the divorce in addition to the financial maintenance he has to pay her during the iddah period.
Compensation for harm suffered by the wife
If a judge finds that a wife has suffered harm during her marriage, the judge can order her former husband to compensate her for the harm she suffered in addition to the financial maintenance he has to pay her during the iddah period.
If the court finds that a wife has suffered harm during her marriage, it will proceed to determine the appropriate level of maintenance and compensation due to her upon the pronouncement of the divorce. The level of maintenance and compensation is determined based on the standard of living that the former wife was accustomed to during her marriage. The maintenance and compensation takes the form of regular monthly payments that continue until the former wife’s remarriage, death or she no longer requires them.
A spouse who claims to have suffered material or moral damage can make a request to the court for an order that compensation be paid by the other party to him/her for the damage suffered.
Fathers must provide housing for the mothers with custody of the children. It is considered shameful if fathers do not provide mothers with housing.
Enforcement of court-ordered maintenance
The country has a number of mechanisms to effectively enforce court-ordered maintenance including:
- The establishment of a specialised court to solely handle maintenance concerns, thus expediting claims and enforcement;
- Empowering the court to impose a wide range of measures against defaulters, including:
- imposing penalties such as fines or imprisonment;
- making garnishee orders against the defaulter’s earnings;
- ordering the defaulter to post a banker’s guarantee against future defaults, attend financial counselling and/or perform community service; and
- requesting access to the employment information of the defaulter from the CPF in order to facilitate the direct deduction of maintenance payments from the defaulter’s wages;
- Empowering the Shari’ah c ourt to sign on behalf of a party who, without good reason, refuses to sign the necessary documents to sell or transfer ownership of a property to the other party despite a prior court order for the party to do so;
- Providing women with the ability to report the court-ordered maintenance amount owed to designated credit bureau(s). This measure is aimed at discouraging defaults in the payment of court-ordered maintenance as such defaults would affect the credit stranding of the defaulter; and
- Obligating men to declare to their prospective wives (prior to remarriage), their maintenance debts and obligations towards their former wives and/or children. This ensures that their prospective wives are aware of their prospective husband’s maintenance before marrying them.
These countries have established a fund that assumes responsibility for payment of court-ordered maintenance if a former husband or father is delinquent in his maintenance payment.