In order to understand the concept of divorce, one must appreciate the different nature of marriage from the Islamic perspective. The difference in the concept of marriage is reflected in the approach adopted for divorce.
In Western society, marriage is viewed from the perspective of individual happiness. If notion of romantic love and individual happiness are not realized in a marriage, divorce is seen as an easy option.
In Islam, however, the welfare of the family as a unit is given greater emphasis than individual happiness. In the modern Malaysian Muslim society, though the marriage institution still plays an important role, its stability has been challenged.
Various studies have shown that the trend towards individual happiness is more pronounced now due to many factors. These challenges must be addressed seriously by policy makers to ensure that the family, which is the foundation of society, remains stable on all fronts.
Despite the fact that the aim of the Shari’ah is to establish a healthy family unit through marriage, Islam does recognise divorce. Divorce is, however, couched in the context of important moral and human principles. Islam commands husbands and wives to consort with each other with kindness or to part from each other with kindness. Divorce should not be a weapon used against spouses, but a humane practice which is resorted to in exceptional circumstances; i.e. when it is feared that the limit set by Allah SWT will be transgressed.
Notwithstanding Qur’anic affirmation of equality and justice, rationality and strong moral exhortation, studies show that women were not given adequate access to the divorce process. Despite reforms in legislation which has been passed in the majority of Muslim countries to correct abuses in Muslim society, there is widespread exploitation of divorce laws, and Malaysia is said to be no exception. It is therefore pertinent to see whether there is empirical evidence to support this contention especially in relation to access to the divorce process.
It is interesting to note that a five year study from 1995 to 1999 by Aishah Saleema in 2002 showed that, there was an average more divorce petitions instituted by women than men. There seems to have been a shift from earlier study by Zaleha in 1993 which found that between 1983 and 1986, 97.5% of petitioners were men while the remaining were women. However, after the Islamic Family Law Act was enforced in 1984, the percentage of male petitioners decreased to 74% and the proportion of female petitioners increased to 26.8%.
A national study on divorce conducted by Department of Shari’ah Judiciary in 2005 also shows that females made up the majority of applications presented in the Shariah courts of all states in Malaysia. Although it is not possible to assess the reasons for this shift, various explanations have been put forward to try to understand why this is so.
Zaleha in her 2008 research indicated that although the husband may not wish to constitute divorce proceedings, neither does he has much interest in the marriage itself. This indifference in the part of the husband may motivate the wife to petition for divorce.
Where women are economically dependent on their husbands, this in many cases act as a deterrent to divorce in Malaysia. However, since there has been an increase in female participation in the labour market of Malaysia (46.7%), our women have gain more economic power and the options opened to them also increases and divorce being one such option.
Another factor, which may explain why more women are petitioning for divorce in some states of Malaysia, is the changing role of women in the family. Besides being economically independent, there is an awakened consciousness of equality and non-discrimination. Women are increasingly becoming more vocal about inadequacies in their marriage. They are choosing to pursue their careers and higher education thus giving themselves more opportunities to pursue activities outside traditional stereotypes, which confine them to roles as home-makers and mothers.
Legal aid which was introduced to Malaysia in 1971, with the prime object of assisting litigants with limited means to initiate legal proceedings, including divorce, have also assisted women to petition for divorce.
Although there are some States where there are higher incidents of male petitioners, possible explanation for this must be explored. One study (Kuchiba et.al., 1979) which tends to support the trend for males being more likely to institute divorce proceeding in Malaysia shows that in most cases in the Malay society, the wife is the one who instigates the divorce by persuading the husband to expedite matters by divorcing her by talaq. It would appear on paper that as if the men are petitioning, but, in reality, both parties agree to divorce. Due to expediency process of divorce by talaq, the husband seems to be initiating the divorce.
Discrepancy in percentages of female plaintiff between states are directly correlated to the legal provisions, implementation of these provisions, education level, level of exposure on marital rights and responsibilities and the socio- economic status as well as the local culture. With the increase in the number of women gaining more financial independence and exposure through well-planned education strategies, as well as introduction of a more systematic method for divorce case management, the percentages of female divorce plaintiff are expected to increase in the future.
Another factor which cannot be ignored when considering the possible deterrence for women petitioning for divorce is linked to economic dependency. Although there are many women currently in the workforce, one study using Americans as sample (Weitzman, 1985) reveals that compared to men, there are more unemployed women. Upon divorce, these women are faced with a higher chance of being plunged into poverty. So whilst economic dependency may remain hidden during marriage, it becomes a public problem when women are faced by poverty.
The financial loss suffered by women upon divorce is more often than not far greater than that suffered by men. Women will be more concerned about division of property, settlement of maintenance, and arrangements regarding children. Since women are more likely to retain the care of children, these matters are of more concern to them.
All the above empirical evidence shows that generally Muslim women in Malaysia do have equal access to divorce. The next important question would be where they would go from there. The future seems so bleak.