Fasakh
The fasakh separation path is somewhat unique, as it results in an annulment of marriage rather than a divorce. This means that the marriage never existed in the first place, and will never be recognized as one which had existed.
In general, using fasakh is mostly easier for woman, as the majority of applicable grounds are focused on a failure of duty or character by a husband.
If you are a man and you choose this separation path, there are a few grounds that are still applicable for you.
Use our Questionnaire before reaching out to your advisors. It will give them a head start in understanding your specific situation.
Grounds for fasakh focus on the character of your partner
Under this method, there is an emphasis on protection from a husband to the wife, or a failure of a husband in carrying out their duties.
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Be aware, depending on how your state practices the law, there may be more or less applicable grounds for fasakh.
Some grounds for fasakh include the following:
Husband is not around for more than 1 year.
He has neglected to provide maintenance for more than 3 months.
When he is imprisoned for more than 3 years.
He has neglected marital obligations for 1 year.
When the husband treats his wife with cruelty.
The full list is is much more comprehensive than the above, and goes into very specific cases. Consult your religious advisor and if need be, your lawyer.
What you need to do to file for fasakh
1 Complete your declaration details
This is performed at the court in your state.
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Some items include:
1. Details of marriage.
2. Details of children.
3. Reasoning for separation
4. Proposal on separation of assets, family and maintenance.
You may need other documents that support your declaration form.
4 Make your court appearance
Usually this is scheduled for less than 1 month after you give your declaration and application form to the court.
At this point, you and your partner can represent yourselves in front of the judge and state your case.
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The judge will then decide on a trial date where they can assess your case in detail.
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Check with your state what documents to bring.
7 Annulment order is issued at court
Based on the decision of the judge, the court will issue an order to be used for marriage annulment.
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2 Submit your application form
This is performed at the court along with your declaration form.
You will also need to pay a application fee which depends on the state that you are in.
5 Prepare trial documents
There is a 1 month period for both sides to prepare their trial documents.
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This can include:
1. Statement of claim.
2. Statement of defence.
3. Documentation related to proof of fasakh.
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You will need a lawyer to help you at this stage.
8 Register the annulment
In order to register your anunulment, the court order must be submitted to Jabatan Agama Islam Negeri in your state.
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Some states have their documents and registration process online, others not.
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Payment of the registration will also vary according to your state.
3 Respond to your court summons
If your partner is the one filing the application for separation, the court will summon you to take part in their enquiry on the separation application.
6 Attend the trial
At the trial, the judge will make a decision based on the evidence shown in the trial documents.
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In principal, a trial aims to be complete within 3 months of being initiated.
9 The annulment is finalized
The annulment will be registered and a certificate will be issued, usually within 1 month.
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Your annulment is now official.
If you are not satisfied with the court outcome, you may appeal within 14 days
In principal, any court decision except for those made by the Hakam can be appealed.
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The process differs from state to state. You will need legal advice to support you.
Ruju is not allowed under a fasakh separation
This is because the marriage was annulled. i.e. it never existed in the first place.
Because of this, mut'ah and nafkah iddah can not be claimed.
If you want to reconcile with your partner, you will need to marry them again in the normal manner.
It is important to make sure that the separation path you choose is applicable to your situation
Bring our Questionnaire to your legal advisor
If you can't afford a lawyer, there are options for you
You can apply to the Legal Aid Department (LAD) under Jabatan Bantuan ​Guaman (JBG). They also provide mediation services, just in case you and your partner eventually agree on a mediated separation.
Lawyer costs are subsidized, so depending on the complexity of your case, your cost will vary. Court costs however, are free.
The Bar Council Legal Aid Centre (LAC) also provides similar legal advice to the LAD. Under the LAC, costs for a lawyer are free. However, the costs for the court are to be paid by you as usual.
Both the LAD and LAC have a test to determine if you qualify for their services. LAD requires annual joint income to be < RM 30,000. For the LAC, a monthly joint income of < RM 900 is required.
Sisters in Islam also provides free legal advice for women under their Telenisa service. They also provide certain support for various parts of the separation process.
It is best to contact each organization for the most updated details. You may also find other similar Legal Aid Centers across Malaysia, do a search online for your closest one.