by Manawee NiringjueraeTable of Contents
The Validity of Prenuptial Agreement
Ta’liq: The position in Malaysia
The Possibility of Implementation
Abstract
It is a very important provision of Muslim law of marriage and enables a wife to safeguard her future married life. She can make it a condition of her marriage that the husband should delegate his power of divorce to her so that she can exercise it, that is, divorce herself on his behalf, whenever she is not satisfied with his behavior or the husband commits a breach of terms agreed upon.
In Malaysia, ta’liq agreement was introduced as a means of protecting the right of Muslim women in marriage. In recent years, it seems that there is tendency of wives to use ta’liq agreement pronounced by their husband after the solemnization of the marriage, as a way of out of it. It is a delegated right of repudiation (talaq) given to the wife based on the stipulation agreed upon by the husband, She would be given this delegated right under certain circumstances.
Furthermore, a divorce does not take place automatically if conditions are breached. To affect a divorce, a wife must lodge a report with the Syariah Court. Once it has been shown that there is a legitimate ta’liq and that one party has acted in contravention to it, the court has the power to decide on the matter of the divorce.
In this paper the writer attempts to discover the truth of this contention and to identify whether there is a room for betterment or reform in the procedure. Prenuptial agreement seems to be a good selection that the writer would like to propose on this matter. The paper will also ascertain the feasibility of such changes in the Muslim Society.
Introduction
Ta’liq[1] or conditional or delegated divorce, is another way of divorce[2] where the wife includes a condition in her marriage contract that allows her to divorce on her own initiative under certain specific circumstances. Under a ta’liq divorce, a woman has the right to divorce her husband if he violates one of the conditions listed in the ta’liq agreement (stipulations in the marriage contract) agreed upon at the time of the marriage. These conditions may include desertion, failure to pay maintenance, and harm caused to the wife. Upon a woman’s petition, a court will make an inquiry into the validity of the divorce and, if satisfied, confirm and record the divorce.
However, there are another form of conditional divorce called ta’liq al-talaq where the husband proclaim a divorce under certain conditions and it come into effect immediately when the condition has been fulfilled.[3] And this type of divorce are effected without intervention of the court. The condition may refer to the occurrence or non-occurrence of certain specified future event or it may refer to a certain time or place.[4]
The condition subject to which a divorce is pronounced may relate to a specified place.[5] Thus, he may say that, “You are divorced when you enter Makkah,” and in such a case the wife would not be divorced till she actually enters Makkah. Similarly, he may say to his wife, “If you enter your father’s house or the house of ‘A’ then you are divorced.” A divorce shall take effect in that case only when she enters her father’s house or A’s house but till then the divorce remains in suspense.[6]
The Pakistani jurist Kazi Nasir-ud-Din Ahmed mentions ta‘liq al-talaq in his work The Muslim Law of Divorce, one of the most comprehensive and detailed works in Islamic law on the matter of divorce written in English, covering all of the four Sunni law schools and Shi‘ism. He explains it as follows: [7]
“A condition can be attached while pronouncing a divorce so that the divorce takes effect only upon the fulfillment of the condition to which it is subject. The condition may refer to the occurrence or non-occurrence of a certain specified future event or it may refer to a certain place or time. A conditional divorce remains in suspense and the marriage subsists till the condition, subject to which it was pronounced, is fulfilled. A divorce is effected as soon as the condition is fulfilled. If, however, the condition becomes impossible of fulfillment then the declaration of the husband, that is, the conditional divorce becomes ineffective, and the marriage continues to subsist as before. If the divorce is made contingent on a default on the part of the husband in the performance of certain condition or conditions agreed upon between the parties, a divorce would be effected on the occurrence of the breach of the condition”.
This form of divorce very rare occurs in Malaysian community. However, it was a widely acknowledged form of divorce in classical Islamic law and supported by jurisprudence in classical Islamic law.[8] Ta‘liq al-talaq seems to have enhanced the unilateral power of the husband in pronouncing the repudiation of his wife in the historical reality of the Middle East and North African Muslim societies.[9] Furthermore, it seems to have been generally pronounced only in anger or excitement not the result of cool deliberation nor, as a general practice, intended to be effected.[10]
As a husband, he has the right to divorce his wife without the intervention of the court. He can either exercise the right of dissolving the marriage by himself or appoint an agent to exercise this power on his behalf or, in other words, he can delegate his power of divorcing his wife to another person who may be the wife herself. This delegation of power of divorce to the wife is called Tafwid and is well recognized in Muslim Law. [11]
Delegated divorce is another way of divorce where the wife includes a condition in her marriage contract that allows her the right to divorce on her own initiative under certain specific circumstances.[12] For instance upon the husband’s breach’s of a condition agreed upon by the parties in the ta’liq agreement. In other words, if the husband breaches the consent that he had pronounced, the wife could bring the case to the court to confirm that the divorce has occurred.[13] In having ta’liq, it is hoped that husbands would give due care to the rights of the wife generally mentioned in the statutory agreement. It is a statutory regulation that ta’liq consent should be pronounced by the husband and signed by him after the marriage contract ceremony.
Religious Sanction
The basis of the type of divorce is the stipulation agreed upon by the husband, that the wife would be entitled to a divorce under certain circumstances for instance, upon the spouse’s breach of a condition agreed upon in the marriage contract. This type of divorce is also known as tafwid at talaq.[14]
The husband is bound by his agreement, as Muslims are generally bound by their agreements, and are expected to fulfil their obligations. For instance, in the Qur’an Allah says:
$yg•ƒr'¯»tƒ šúïÏ%©!$# (#þqãYtB#uä (#qèù÷rr& ÏŠqà)ãèø9$$Î/ 4 [15]
O you who believe! Fulfil all obligations.
At another place, the verse refers to the honouring of commitments, when it states that:
(#qèù÷rr&ur ωôgyèø9$$Î/ ( ¨bÎ) y‰ôgyèø9$# šc%x. Zwqä«ó¡tB[16]
‘And Fulfil every covenant. Verily, the covenant will be questioned about.’
With regard to agreements or settlements made between a husband and wife, in Surah an Nisa Allah says:
ÈbÎ)ur îor&z�öD$# ôMsù%s{ .`ÏB $ygÎ=÷èt/ #·—qà±çR ÷rr& $ZÊ#{�ôãÎ) Ÿxsù yy$oYã_ !$yJÍköŽn=tæ br& $ysÎ=óÁム$yJæhuZ÷�t/ $[sù=ß¹ 4 ßxù=�Á9$#ur ׎ö�yz 3 ÏNuŽÅØômé&ur Ú[àÿRF{$# £x’±9$# 4 bÎ)ur (#qãZÅ¡ósè? (#qà)Gs?ur cÎ*sù ©!$# šc%x. $yJÎ/ šcqè=yJ÷ès? #ZŽ�Î6yz[17]
If a wife fears cruelty or desertion on her husband’s part, there is no blame on them if they arrange an amicable settlement between themselves; and such agreement is best; even though men’s souls are swayed by greed. But if you do good, and practice self-restraint, Allah is well- acquainted with all that you do.
The prophet (s.a.w.) himself was asked to give his wives an option to obtain a divorce from him as Allah says:
O Prophet! Say to thy consorts: “If it be that you desire the life of this world, and its glitter, - then come! I will provide for your enjoyment and set you free in a handsome manner”.[18]
Regarding conditions or stipulations in marriage contracts, there are Traditions of the Prophet (s.a.w.) to that effect, for instance:
Uqbah b. Amir reported the Messenger of Allah (may peace be upon him) as saying: The condition worthier to be fulfilled by you is the one which you made the private parts (of your wives) lawful (for you).[19]
In Ahmad Hasan’s explanatory English translation of Sunan Abu Dawud, it is elaborated in the footnote to this Hadith that:
The condition imposed by the wife at the time of marriage or the word a man gives before his marriage must be fulfilled. For instance, a woman marries on condition that the husband will not take her outside the place she wants to stay. The husband should fulfil this condition. He cannot legally take her outside the city where she has her residence. He can do so with her consent. The condition, it should be noted, laid down at the time of marriage must be lawful such as dower, residence, maintenance and good living.[20]
In Islamic Family Law, all the Sunni schools recognize the doctrine of the delegation of the power of divorce to the wife. The injunction regarding the prophet (s.a.w.) and his wives referred to in Surah al-Ahzab 33:28 cited above is also put forward by some jurists as a basis for this doctrine. It is explained by the jurists that the Prophet (s.a.w.) had, in obedience to the Qur’anic injunction, empowered this wives to choose between living with him or a separation; the wives chose the Prophet (s.a.w.) and so the marriages were not dissolved. It is inferred that a husband can lawfully delegate to his wife the power to dissolve the marriage, if she so chooses.[21]
It is based on the major texts like the Qur’an and Sunnah that the conditions in the ta’liq agreement are validated. All the Sunni schools recognize the doctrine of the delegation of the power of divorce to the wife, i.e. the basis of separation by ta’liq.
According to the majority of Muslim scholars, the power given by tafwid or delegation cannot be revoked, and the wife to whom the power is delegated exercises it in respect of her own person and has absolute right to exercise the power or not as she may choose.[22]
However, there are some differences of opinions between the traditional scholars as to the validity of certain conditions that entitle the wife to a dissolution of marriage e.g. the Hambali view is that a husband who agreed in his marriage contract not to take another wife during the continuance of the marriage would be bound by such a stipulation so that the first wife would be entitled to a dissolution of marriage in the event of its breach, while the Hamafi and the Shafi’i is would hold such a stipulation to be void.[23]
The Hanbali approach is that any condition agreed between the parties, orally or in writing, must be honoured and given effect, and any party who made that condition shall retain the right of cancellation if the condition is broken, unless there is a Sharia proof of its being void.[24] If a condition could be proven void under the Sharia, it must be deemed null and void e.g. a condition by a wife to have a previous wife divorced.[25]
With such given to the wife through the ta’liq pronounced by the husband, it is acknowledged that a few arising issues should be made clear. As previously highlighted, from the rules and regulations observed, it is obvious that a husband cannot avoid from pronouncing the ta’liq agreement. Not only it is a statutory requirement, but also the occasion in which it takes place obviously shows that a husband does not have any choice or say in the matter. Since ta’liq is usually pronounced after the ‘aqad ceremony. Once pronounced, the form of ta’liq agreement shall be signed by both husband and wife and attested by witnesses.
Thus, from the whole occasion an issue arises as to whether the husband consented to the agreement. It seems that there is an element of coercion present during the whole occasion. If such is the case, then the ta’liq agreement automatically becomes void[26]
Under the Islamic Law of contract consent is one of the foundations to a contract.[27] The Quran says:
“…But let there be amongst you traffic and trade by mutual good-will…”[28]
Similarly, consent obtained by coercion, misrepresentation, deceit, or fraud cannot be valid as it is not free but brought about by external forces.[29] Even the Prophet (s.a.w.) had also said that, ‘Indeed, Allah has released my Ummah (from liability) mistake, forgetfulness and things done under coercion.’[30]
Thus, the consent of husband and wife is a vital element in order to be a valid contract. It is also arguable that although agreement is given for the performance of the ta’liq procedure, but lack of acknowledgment or ignorance of the effect of the contract will also affect the validity of the ta’liq pronounced. Hence, it is contended that the procedure of ta’liq made by the prospective husband in this country might causes uncertainty to the validity of the ta’liq pronounced by spouse and would probably make the ta’liq and agreement signed invalid.[31]
The Validity of Prenuptial Agreement
Allah SWT says in surah al-Baqarah in ayah 177, about the believers:
šcqèùqßJø9$#ur… öNÏdωôgyèÎ/ #sŒÎ) (#r߉yg»tã
‘…To fulfil the contracts which you have made…’
Regarding conditions stipulated in marriage contracts in particular, there is a tradition of the prophet (s.a.w.) stating to the effect that, Uqbah b. Amir reported the Messenger of Allah SWT as saying: “The condition worthier to be fulfilled by you is the one which you made the private parts (of your wives) lawful (for you).”[32]
Ahmad Hasan quoted from Ibn Qayyim who comments to this Hadith said that:
“The condition imposed by the wife at the time of marriage or the word a man gives before his matrimony must be fulfilled. For instance, a woman marries on condition that the husband will not take her outside the place she want to stay. He should fulfil this. He cannot legally take her outside the city where she has her residence. He can do so with her consent. The condition, it should be noted, laid down at the time of marriage must be lawful such as dower, residence, maintenance and good living.”[33]
Under the Hanbali school, the bride and groom have the right to add provisions to the marriage contract at the time of marriage or afterwards by including additional clauses. In order to be valid, such clauses must further the object of the marriage and not violate the Shari'a.[34] For instance, conditions that the husband needs not to maintain the wife, or that the husband must divorce a previous wife are deemed void. However, clauses that eliminate the husband's right to take a second wife, or grant the wife greater freedom of movement or the power to divorce her husband at will, are valid.[35] A valid clause is enforceable by the party who made it; that party has the power to cancel the contract if the clause is violated. The Hanafi school generally does not allow additional clauses to the marriage contract. However, many Hanafis jurists today recognize that certain conditions may be added. While, such Hanafis accept the conditions that give the wife the right to divorce the husband at will, they consider a condition prohibiting the husband from taking another wife as void.[36] Malikis accept the validity of additional clauses, but complicate the wife's right to add a condition granting her the power of divorce by requiring that the right be transferred from the husband in a certain form.[37]
The Shariah jurists have accepted that a marriage contract may include condition for either or both spouses which must be observed if they are advantageous to either party.[38] There are some differences of opinions, however, between the traditional scholars as to the validity of certain demands. The difference of views among the classical jurists on this issue is closely related to their different opinions as the freedom of contracting parties in general to regulate their contractual relationship by means of stipulations in the contract under the Islamic law of agreement.[39]
For those scholars who do not accept such external stipulations at all, they have no effect, and are not binding, and do not affect the validity of the underlying contract. For those who accept them, they give the woman the option to annul the marriage if the condition is violated.[40]
However, the underlying basis for the validity of prenuptial agreement under Islamic law of contract would be based upon the ‘Contingent Contract’ principles. This is due to the fact that prenuptial consent is drawn and signed before the marriage contract itself.
Contingent contract is defined as ‘a contract to do, or not to do something, if some event collateral to the contract, does or does not happen.’[41] If such contract depends upon the happening of a future event, it cannot be enforced unless that event happens and if the event becomes impossible, the contract becomes void. Thus, if A contracts to pay B a sum of money when B marries A and B later dies before the marriage contract, then the agreement becomes void.[42]
There are three kinds of contingent contract:[43]
1) A contract, which does not admit of suspension or contingency. Such are agreements by which ownership in property is transferred, contracts of marriage, and divorce by khulu’.
2) A contract which is contingent upon a condition fitting the agreement, or a condition, required for it. This condition is also known as collateral contract.
3) A contract, which is contingent upon a condition that is not connected or collateral to the agreement.
The Shafi’es have no doubts in regard to the validity of condition collateral to the contract. Whereas, the Malikis and Hanbalis are in favour of its validity on the ground that the condition is not repugnant to the contract and it is correct on the ground of public policy. The Hanafis have validated it on the principle of Istihsan. However, jurists argued that the time of completion of the condition must be duly fixed.[44] The performance of the prenuptial agreement is contingent upon the occurrence of the marriage contract. If there is no marriage contract, then the agreement is void.
Ta’liq: The position in Malaysia
In Malaysia, ta’liq agreement seems to be an ideal means of protecting Muslim women’s right in their marriage. Therefore, it is usual for the husband to pronounce the statutory ta’liq agreement in the prescribed form immediately after the marriage is solemnized.[45] According to Section 2 of the Islamic Family Law (Federal Territories) Act 1984 ‘ta’liq’ means a promise expressed by the husband after solemnization of marriage in accordance with Hukum Syara’ and the provision of the Act. [46]
The prescribed agreement in the statutory from normally entitles the wife to apply for a ta’liq divorce in the event of the husband leaving or neglecting or not providing maintenance to the wife for a period of four month or more, or causing hurt to her person.[47]
In the Federal Territories the prescribed form of the ta’liq reads as follow:[48]
“I do solemnly declare when I leave my wife for four months voluntary or involuntarily and I or my representative do not give maintenance for such period whereas, she is obedient to me or I cause hurt to her person, then she makes a complaint to the Shariah Court and if found by it to be true, and she gives to the Shariah Court for me a sum of one ringgit, then she is divorced by a talaq khul’i .”
Whereas, Section 22 of the same Act provides for the responsibility of the Registrar, amongst others:
1) Immediately after the solemnization of a marriage, the Registrar shall enter the prescribed particulars and the prescribed or other ta’liq of the marriage in the Marriage Register.
2) The entry shall be attested to by the parties to the marriage, by the wali, and by two witnesses other than the Registrar, present at the time of the marriage is solemnized.
3) The entry shall then be sighed by the Registrar.
Section 26(2) of the act gives the Registrar the right to issue a ta’liq certificate in the prescribed form, upon payment of the prescribed fee.
While Section 50 of the Act provides[49]:
1) A married woman may, if entitled to a divorce in pursuance of the terms of a ta’liq certificate made upon a marriage, apply to the Court to declare that such divorce has taken place.
2) The Court shall examine the application and make inquiry into the validity of the divorce and shall, if satisfied that the divorce is valid according to Hukum Syara’, confirm and record the divorce and send one certified copy of the record to appropriate Registrar and to the Chief Registrar for registration.
Section 22 of the Act allows for additions to be made to the standard ta’liq, or for altogether different ta’liq to be registered. It is worth noting that the conditions that may be set are undefined by the Act except that they may not contradict hukum syara’.[50] In other words, a married couple can add conditions to their existing ta’liq after the marriage is solemnized, So long as both partners agree to the addition of conditions to ta’liq.
It is noted that generally, the scope of protection provided by the prescribed ta’liq agreement is only based on matters of maintenance, desertion, and hurt caused to the wife. Although Section 22(1) of the Act provides for the entry of “the prescribed or other ta’liq of the marriage in the Marriage Register” it is not possible for additional or optional conditions to be included in the prescribed statutory ta’liq agreement.[51]
According to the Registrar of the Shari’ah Court of Kuala Lumpure, Ustaz Abu Zaky Mohammad, any additional conditions in the ta’liq agreement are not allowed. Even if stated they would not be enforceable by the Shari’ah Court due to the fact that the court does not have jurisdiction to do so.[52] In other words, under the Act, it is not possible for parties to the marriage to provide for any additional conditions.
However, he further stated that the Shari’ah Technical Committee (JAKIM) is in the process of adding an additional condition in the present ta’liq agreement.[53] Once gazette, it would be included in the statutory ta’liq consent. But it is obvious that if that additional condition is specific in nature, any other agreed upon by both husband and wife or the wife’s wali, to be included in the ta’liq agreement, would not be enforceable in the Shari’ah court. Besides, according to Ustaz Abu Zaky, in his years as the Registrar, he had not come across any cases where parties claimed additional conditions from the statutory ones.[54]
Analysis cases
From the cases involved, it is observed that ta’liq divorces are those where the wife claims that she has not been paid maintenance. In some instances the husband attends the court, in others he is not present. There are also some cases where the wife applies for ta’liq divorce on the ground of assault by the spouse.
I. Cases of desertion or failure to maintain where husband was present
In such cases the court the court will hear both the parties and the witnesses and then decide on the evidence.
In the federal territory case of Salemawegam v Mohd Anuar,[55] a case in Kuala Lumpur, the wife applied for ta’liq on the ground of the non-maintenance. The husband did not deny that he had not paid maintenance, but alleged that the wife had refused to consummate the marriage. Hence he claimed that he was not bound to give support. The court asked both parties to take the solemn oath. His wife took the oath and said that there had been sexual intercourse between them. The husband however, had refused to take it as required by the court. It therefore gave judgment in favour of the wife and decreed a ta’liq divorce by one talaq.
In the Perlis case of Aminah v Ahmad[56] the wife complained that the husband has deserted her and had not given her maintenance for over three months. The husband admitted that he had not lived with the wife and not had maintenance her but said that he had tried to take her back and to settle the dispute but this had failed. The wife called two witnesses to support her case. The Kadi give judgment for the wife and after ascertaining that she was in state of purity decreed that one talaq divorce had been affected. The appeal of the husband to the Appeal Committee was dismissed.
In Aisny btn Mohd Daris v Haji Fahro Rozi bin Mohdi,[57] the wife applied to the Shariah Subordinate Court for the confirmation of the cerai ta’liq under section 50(1) of the Islamic Family Law (Federal Territories) Act 1984. The parties had lived together for almost 20 years and had three children. Subsequently, however, when the husband married another woman, problems arose and the wife alleged that the he had neglected to give maintenance to herself and her children. The wife made a report to the Kadi but efforts at conciliation were not successful and eventually she applied to the Shari’ah Court to confirm the ta’liq which had been pronounced by the husband on the wife.
The learned that judge held that the wife was not nusyuz and was therefore entitled to maintenance. Although she had moved from the matrimonial home this had been done with the knowledge of the husband, and in fact he had acquiesced in the moving of the matrimonial home as he continued to live with her and their children in the new house for about six months before he deserted them. It was also held that the wife was justified in confiscating lands which was registered in the husband’s name as they were properties jointly acquired during the marriage. However, the learned trial judge dismissed the wife’s application of divorce as he held that she could have obtained the maintenance by selling the shares in her possession (which was owned by her).
The wife appealed to the Shari’ah Appeal Board. The Board allowed her appeal as there was no proof or evidence that the shares belonged to the husband and therefore it would be wrong to expect the wife to maintain herself or own property. The Board distinguished this case from Hadith relating to Hendon and her husband Abu Sufian as in the Hadith, the lady was asked to take from her husband’s property and spend for her needs (“Take from his property what is enough for your needs and those of your children”), not to maintain herself out. In this case as the husband had not given maintenance to his wife for over four months, she was entitled to the divorce in accordance with ta’liq.
II. Cases where the husband was absent
In the Penang case of Siti Zainab v Mohamed Ishak[58] the wife claimed that her husband had deserted her for over three months. Although a registered letter was sent to the husband and an advertisement inserted in the news papers he did not attend court. The wife then gave evidence and called two witnesses who could not support her story. Later she called two other witnesses who did so. The wife claimed that she had remained in matrimonial home and had not left it and in this she was supported by the witnesses. The court asked her to take an oath, Yamin ul Istizhar, to support her case and after she had taken it, judgment was given in her favour. The court confirmed the divorce by one talaq.
In the Kelantan case of Piah v Muhammad Zainal [59] the wife applied for cerai ta’liq on the ground that the husband had deserted her for over two years and had not given her any maintenance. She gave evidence and called one witnesses to support her. She was then asked to take the oath. She was asked to pay RM1 to Kadi for the husband and after that the court declared that she was divorced by one talaq khuli.
III. Cases of assault on the wife
In the Perles case of Hasnah v Saad [60] the wife claimed cerai ta’liq on the ground that her husband has assaulted her on her face near her right ear. She produced the taliq declared by the husband, and a medical certificate as evidence of her injuries. The husband denied that he had assaulted her and claimed that the injuries were self-inflicted. The court gave judgment for the wife and declared that she was divorced by one talaq.
In another Perlis case of Dah v Abdullah [61] the wife complained that she has been assaulted causing injury to her hand and she had been treated in hospital. She also made a report to the police. The husband denied the charges but he did not cross examine the wife when she gave evidence. There was evidence that he had asked the wife to forgive him. The court gave judgment in favour of the wife and declared she was divorced by one talaq.
Suggestion for reform
After analyzing the area of practicing the ta’liq contract in this country, it can be seen that there is some uncertainty related to the procedure of the ta’liq made by the prospective husband, which would affect the validity of the ta’liq pronounced by him.
It is suggested that the practice of ta’liq should be replaced with prenuptial agreement, this is because the scope of protection provided is only limited to matter pronounced or mentioned in the ta’liq.[62] A great deal of the heartache can be avoided by a woman in her marriage if she, as the bride-to be, agrees to and signs a carefully considered Prenuptial Agreement that guard her rights before entering into wedlock[63]
A common practice in Western society, a prenuptial agreement is a binding agreement entered into prior to the marriage in which the parties, in however much detail they wish, set forth what will happen to their income and assets in the event the marriage ends in death, divorce, or separation.[64] It is a contract entered into before the marriage takes place.
This agreement must be in writing, signed by both sides, and signed before witnesses and entered into the court records. Unlike the agreement made by Western couples which only focuses on issues pertaining to wealth and property, it can also be used to safeguard Islamic rights within a marriage and, if necessary, in the case of divorce.
The Prenuptial Agreement can also guarantee a woman many of her Islamic rights, which can be enforceable by law even if she lives in a Western country. Arguable women’s Islamic rights are more fair and equitable than women’s rights in the West, so it makes sense to know just what her Islamic rights are and how they can be relinquished, should she neglects to claim them before marriage. A great deal of misinformation abounds concerning the Prenuptial Agreement and women’s Islamic rights.[65]
It is clearly shown that a prenuptial agreement grants more strength to Islamic marriage contract and the determination placed therein. Husband and wife are allowed to put conditions in the marriage contract, provided they do not contradict Islamic Law. Furthermore, a prenuptial Agreement must also comply with the laws of the country in order to be enforceable by law, in which it is drawn up and singed.[66] This will guarantee that the agreement will legally binding on both the husband and wife.
Such an agreement, would be a better method to solve the problem of misunderstanding of the effect of the ta’liq agreement and lack of consent in accepting the agreement, since a prenuptial consent is individual in nature and has to be carefully drawn up by both parties and mutually agreed upon before signing it. If both side to be married had understood the content, effect of the agreement and consented to it, then it would be valid and binding upon them.
Besides that, the agreement could guarantee more rights to both sides in the marriage. In addition certain stipulations could also be made by parties in order to protect their interests in case of difficulties arising in their marriage. In other word, a prenuptial consent is capable of granting a wider range of protection to both spouses, instead of limited ones under the ta’liq agreement.[67]
The Possibility of Implementation
In Malaysia, any new policies or proposals in regard to Islam and its community will have to be dealt with by the Department of Islamic Advancement of Malaysia, Prime Minister’s Department (JAKIM). JAKIM functions as the central agency in the planning and management of affairs and the advancement of the ummah. The main function of (JAKIM) is to formulate policies for the progress of the Islamic affairs in the nation and to safeguard the sanctity of aqidah in the teaching of Islam; to help draft and streamline laws and regulations that are necessary.[68]
According to Mr.Yahya Md Zaid, an Assistant Director of Coordination of the Law Unit of Jakim, the process of adapting any new policies, proposal or amendment will involve a dialogue at the state level and at the national level. It usually takes quite an amount of time before a final decision can be achieved on any particular matter.[69]
Regarding to prenuptial agreements, Mr.Yahya commented that the prospective parties to be married could make such an agreement. But, for the propose of implementation, it will depend on whether the terms fall under any of the provision of the present law.[70] Thus, the idea for a reformation would have to take many stages before it could ever be approved.
Conclusion
The Muslim jurists who see no objection in the granting of absolute power of divorce by the husband to the wife have considered the matter from the point of tamaluk or transfer of right and agency. Some Muslim jurists have explained tafwid is a special kind of tamaluk as it is clear, according to them, the fact that in the case of ordinary tamaluk, the original owner loses altogether the ownership of the thing or the right; but in the case of tafwid al-talaq he retains his right of evidence while the wife is also invested with it.[71] Such is the basis for the application of ta’liq divorce in Malaysia.
It is argued that Muslim women in Malaysia are not actually protected by the statutory ta’liq pronounced by the husband, since Malaysia’s legislation does not grant the freedom to stipulate any other conditions or stipulations in the protection of wife’s right in marriage, except for the one provide in the statute. Besides that the procedure of ta’liq in Malaysia arguably has shown some element of coercion where a husband cannot avoid from pronouncing the ta’liq agreement. Not only it is a statutory requirement, but also the occasion in which it take place obviously shows that a husband does not have any choice or say in the matter and thus its validity is uncertain.
Therefore, due to these reasons it is believe that the practice of ta’liq should be reformed, by either giving more freedom of right to stipulate or couples could draw sign a carefully drafted prenuptial agreement in order to protect their rights in the marriage.
A prenuptial agreement would be a better solution in order to protect the rights of both spouses if difficulties arise in their marriage. In other words, it is capable of granting a wider range of protection to both sides, instead of limited ones under the ta’liq agreement. Furthermore, it is able to sole the issue of lack of understanding of the effect of the ta’liq agreement and lack consent in accepting the contract, since a prenuptial agreement is individual in nature and has to be carefully drawn up both sides and mutually agreed upon before signing it. If both parties to be married had understood the content, effect of the agreement and consented to it, then it would be valid and binding upon them.
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Harun Din, (1990)Ta’liq: Antara Humum Feqah dengan Hukum Kanun, UKM, Malaysia
Kazi Nasir-ud-Din Ahmed, (1978),The Muslim Law of Divorce, New Delhi: Kitab Bhavan,
Kamaruddin (2004) (Research Center IIUM, Kualalumpur,)
Liaqat Ali Khan Nazi, (1991), Islamic Law of Contract, Lahore, Research Cell, Dyell Sing, Trust Library,
Mohammed El-Fatih Hamid, (1976) The Freedom to make Stipulations in the Islamic Law of Contract, Journal
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http://www.zawaj.com/articles/prenup mills.html.
Sulaiman bin As’as, Sahih Sunan Abi Dawud, (2002) Kuwait, Gharas’
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Tanzil-ur-Rahman, (1978) A Code of Muslim Personal Law, Karachi, Islamic Publisher.
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and Comparative Law, Vol.6
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[1] Ta’liq is usually pronounced immediately after the aqad ceremony. Once pronounced, the form of ta’liq agreement shall be signed by both husband and wife and attested by witnesses.
[2] There are several ways to dissolve a marriage, such as talaq, khul‘ and faskh.
[3] Kazi Nasir-ud-Din Ahmed, The Muslim Law of Divorce, New Delhi: Kitab Bhavan, 1978, p. 79.
[4] Ibid.
[5] Ibid, p. 80.
[6] Ibid.
[7] Ibid.
[8] See Schacht, art. “Talak”, in The Encyclopaedia of Islam, 2nd edition, Leiden: Brill, 1950–2004, vol. X, pp. 151–55.
[9] Ibid.
[10] Kazi Nasir-ud-Din Ahmed, The Muslim Law of Divorce, New Delhi: Kitab Bhavan, 1978, p. 81
[11] Ibid, p. 183.
[12] Nik Noriani Nik Badli Shah, Marriage and Divorce under Islamic Law, Kuala Lumpur, International Law Book Services, 1998, p. 73.
[13] Ibid.
[14] See Noriani Nik Badli Shah, Marriage & Divorce under Islamic Law, p. 73. The meaning of tafwid is the wife to whom the power is delegated exercises it in respect of her own person and has got a right to exercise the power or not to do it
[15] Qur’an, 5:1
[16] Qur’an, 17:34.
[17] Qur’an, 4:128.
[18] Qur’an, 33:28.
[19] See, Sulaiman bin As’as, Sahih Sunan Abi Dawud, Kuwait, Gharas’, 2002, vol. 6 p. 356.
[20] See, Ahmad Hasan, Sunan Abu Dawud: English translation, Kitab Bhavan, 2000, vol. II Kitab al- Nikah, note 1460 to Hadith 2134.
[21] Tanzil-ur-Rahman, A Code of Muslim Personal Law, Karachi, 1978, p 340.
[22] Ibid, pp. 339, 340
[23] Ahmad Ibrahim, Islamic Law in Malaysia, p. 105.
[24] Jamal. Nasir, The Islamic Law of Personal Status, Kluwer Law International, London, 2002, p 58.
[25] Ibid.
[26] Harun Din, Ta’liq: Antara Humum Feqah dengan Hukum Kanun, UKM, Malaysia, 1990, p. 107.
[27] Liaqat Ali Khan Nazi, Islamic Law of Contract, Research Cell, Dyell Sing, Trust Library, Lahore, 1991, p. 80.
[28] Qur’an, 4:29.
[29] Liaqat Ali Khan Nazi, Islamic Law of Contract, Research Cell, Dyell Sing, Trust Library, Lahore, 1991, p. 81.
[30] As referred to by Harun Din, Ta’liq: Antara Humum Feqah dengan Hukum Kanun, UKM, Malaysia, 1990, p. 108.
[31] See, Nor Fadzlina Nawi, “Ta’liq Agreement” in Islamic Family Law, edited by Zaleha Kamaruddin, Kuala Lumpur, 2004 p. 68.
[32] See, Sulaiman bin As’as, Sahih Sunan Abi Dawud, Kuwait, Gharas’, 2002, vol. 6 p. 356.
[33] Ahmad Hasan, Sunan Abu Dawud: English translation, Kitab Bhavan, 2000, vol. II Kitab al- Nikah, note 1460 to Hadith 2134.
[34] Wahbah Zuhaili, Fiqh Islamī wa adilatuhu, Darul Fikrī, Syria, 1985, vol. 7 p. 56.
[35] Ibid.
[36] Ibid.
[37] Ibid.
[38] Jamal J.Nasir, The Islamic Law of Personal Status, p. 55.
[39] Mohammed El-Fatih Hamid, “The Freedom to make Stipulations in the Islamic Law of Contract”, Journal of Islamic Comparative Law, Vol. 6 (1976) p. 22.
[40] Syed Peer, Webmaster, “The Marriage Contract”, see http://nikahsearch.com/marriage/marriage.html
[41] Liaquat Ali Khan, Islamic Law of Contract, p. 96.
[42] Ibid.
[43] Ibid.
[44] Ibid, p. 97.
[45] Nor Fadzlina Nawi, “Ta’liq Agreement” in Islamic Family Law, edited by Zaleha Kamaruddin (Research Center IIUM, Kuala Lumpur, 2004), p. 64.
[46] Islamic Family Law (Federal Territories) Act 1984, section 2.
[47] Nor Fadzlina Nawi, “Ta’liq Agreement” in Islamic Family Law, edited by Zaleha Kamaruddin (Research Center IIUM, Kuala Lumpur, 2004), p. 64.
[48] Ibid.
[49] Islamic Family Law (Federal Territories) Act 1984.
[50] Web master, Protecting Married Women’s Rights with Ta’liq see <http://www.sistersinislam.org.my/index.php? > .
[51] See Nor Fadzlina Nawi, “Ta’liq Agreement” in Islamic Family Law, edited by Zaleha Kamaruddin (Research Center IIUM, Kuala Lumpur, 2004), p. 65.
[52] Ibid, p. 66.
[53] Ibid.
[54] Ibid.
[55] (1983) 5 JH 109.
[56] (1971) 3 JH 81-Decided under the Administration of Islamic Law Enactment 1964, s 13(2) (b).
[57] (1990) 2 MLJ xxvi.
[58] (1976) 2 JH 323.
[59] (1981) 4 JH 222.
[60] (1975) 3 JH 84.
[61] (1974) 3 JH 120.
[62] See Nor Fadzlina Nawi, “Ta’liq Agreement” in Islamic Family Law, edited by Zaleha Kamaruddin (Research Center IIUM, Kuala Lumpur, 2004), p. 68.
[63] Rabia Mills, “Women’s Rights in the Islamic Prenuptial Agreement: Use Them or Lose Them”, see <http://www.islamfortoday.com/prenuptial.htm> (accessed 23 October 2010).
[64] Elayne B. Kesselman, Esq, “Frequently Asked Questions:The Prenuptial Agreement”, see <http://www.divorcecentral.com/legal/legal_answers_5.html>(accessed 23 October 2010).
[65] Rabia Mills, “Women’s Rights in the Islamic Prenuptial Agreement: Use Them or Lose Them”, see <http://www.islamfortoday.com/prenuptial.htm> (accessed 23 October 2010).
[66] See, Nor Fadzlina Nawi, “Ta’liq Agreement” in Islamic Family Law, edited by Zaleha Kamaruddin, Kuala Lumpur, 2004 p. 70.
[67] Ibid.
[68] See, http://www.islam.gov.my/portal/fungsi.php
[69] See, Nor Fadzlina Nawi, “Ta’liq Agreement in Islamic Family Law, edited by Zaleha Kamaruddin, Kuala Lumpur, 2004 p. 73.
[70] Ibid.
[71] K.N. Ahmad, The Muslim Law of Divorce, Kitab Bhavan, New Delhi, 1978, pp, 187-188.
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