SHARIAsource

The document discussed in this essay is an English translation of an Israeli Supreme Court (the “Court”) decision from 2013 in which the Supreme Sharia Court of Appeals (“Sharia Court of Appeals”) is a respondent. The decision resolved a petition made against the Sharia Court of Appeals ruling that it is impermissible to appoint a female arbitrator in a divorce proceeding before a Sharia Court. The Court overturned the Sharia Court of Appeal’s decision on the basis of Israeli equal rights legislation (and Ḥanafī-style legal reasoning) and remanded it back to the Sharia Courts for further arbitration with the option of choosing a female arbitrator.

On June 28, 2022, the Constitutional Court of South Africa confirmed the Supreme Court of Appeal order that the state must amend existing legislation or enact new legislation to recognize and regulate the consequences of Muslim marriages. The order declared certain provisions of the Marriage Act and the Divorce Act unconstitutional due to the persistent non-recognition of Muslim marriages, or marriages solemnized in accordance with the tenets of sharīʿa, that have resulted in the infringement of fundamental rights of parties to Muslim marriages, and Muslim women and children in particular. The Constitutional Court confirmed this order stating that “the common law definition of marriage is declared to be inconsistent with the Constitution and invalid to the extent that it excludes Muslim marriages.”

""Khan v. Hasan, the New York intermediate appellate court held that a mahr agreement under which the husband agreed to pay a sum of money to the wife in the event of divorce was unenforceable under New York state law because the verbal agreement did not conform to New York's laws on matrimonial agreements, which require such agreements to be in writing. The Court further held with regard to the question of applying Islamic law to interpret the alleged agreement: 'It is without question that when courts must touch upon questions of religious concerns, they may not consider religious doctrine.'"

The first defendant (Neima Mohamed, herein Neima), as the plaintiff in the court of first instance, had submitted that:

1. On 4 April 2004, she and the plaintiff (Mostafa Mohamed, herein Mostafa) were married;
2. On 28 February 2005, the parties had executed a pre-nuptial financial agreement that would regulate their financial affairs during and after their marriage;
3. The agreement stated that Mostafa should pay to Neima $50,000.00 if he initiated separation or divorce proceedings against her; and
4. On 11 September 2008, Mostafa Islamically divorced Neima.

Mostafa denied marrying Neima, did not admit points 2 and 3, and denied Islamically divorcing her. Moreover, Mostafa submitted that any separation of the parties had been initiated by Neima.

Before the court of first instance, Mostafa denied having been married to Neima under Islamic law. Her Honour Magistrate Trad did not answer that question, but rather found that the parties had been in a 'domestic relationship'. Regardless, the parties could not agree who initiated the separation and on which date the separation occurred. Mostafa claimed that Neima had initiated the separation on 11 September 2008 by taking his key to their Rockdale unit, while Neima claimed that Mostafa, on 11 April 2007, had asked her to leave their home, and alternatively, on 11 September 2008, had Islamically divorced her.

On the facts, Magistrate Trad found that Mostafa had initiated the divorce on 11 April 2007, further evidenced by him sending his daughter to tell Neima to leave by a certain date, with directions as to the division of their property. Therefore, her Honour found that sufficient evidence existed to activate cl 11 of the parties' agreement, compelling Mostafa to pay to Neima the agreed-upon sum of $50,000.00 (Moackar Sadak or dowry).

On appeal, Harrison AsJ found that Mostafa could appeal the initial decision pursuant to s 69 of the Supreme Court Act 1970, which granted the Court jurisdiction to quash the decision of a lower court if based on an error of law. Mostafa sought to dispute the findings of Magistrate Trad in their entirety on the following grounds:

1. that her Honour had made errors of fact and law;
2. that the decision suffered from jurisdictional error;
3. that her Honour had failed to acknowledge that the agreement had not been executed in accordance with the law;
4. that her Honour had failed to find that the agreement was unenforceable because it conflicted with public policy; and
5. that her Honour had erred by failing to find that the separation, for the purposes of the agreement, did not have to accord with shari'a law.

With regards to appeal ground 4, Mostafa submitted that her Honour had failed to recognise that the agreement was one of servitude in that it compelled Mostafa to remain in a relationship with Neima, lest he pay her $50,000.00. Moreover, it was contrary to public policy for her Honour to determine which party had left the relationship, and cl 11 was void for illegality as it was a penalty clause. The Court found the precedent cited in support of its submission by Mostafa's counsel to be somewhat irrelevant. It found the precedent cited by Neima's counsel, which stated that the court would, where possible, hold parties seeking separation or divorce to their agreement, relevant. The Court also acknowledged the issue of the payment of Moackar Sadak, noting that the lack of any precedent regarding such payment in Australia may necessitate seeing how other common law countries have approached such agreements. The Court also provided a brief discussion on mahr, based on Ann Black and Kerrie Sadiq's, 'Good and Bad Sharia: Australia's Mixed Response to Islamic Law' (2011) 17 UNSW Law Journal 82, noting that mahr appeared to be what the parties meant by Moackar Sadak. The Court found that cases dealing with mahr from the United States, Canada and the United Kingdom all found such agreements enforceable, provided they could not be invalidated for other reasons. Counsel for Neima submitted that, while some customs might be contrary to public policy, what is of utmost importance in enforcing such an agreement is that the parties to the agreement knowingly and voluntarily adhered to those customs.

Harrison AsJ found that, in enforcing such agreements, courts of common law countries have applied common law or the relevant legislation (if any), rather than sharīʿa law. Moreover, that none of these courts found that agreements such as that made by the parties in this instance contradict public policy. Harrison AsJ also dismissed Mostafa's argument that it was not for the Court to decide who left the relationship, stating that '[c]ourts are often called upon, especially in family matters, to determine sensitive factual matters such as when a relationship has ended, or whether it was indeed a de facto relationship...'.

With regards to Mostafa's submission that cl 11 was a penalty clause, Harrison AsJ disagreed. Her Honour found that the Property (Relationships) Act and the Family Law Act allowed parties to enter into financial agreements. Moreover, that cl 11 formed part of the 'greater bargain' between the parties.

Harrison AsJ also dismissed Mostafa's submissions that the court of first instance did not have jurisdiction to adjudicate the validity of the agreement, or to determine whether or not the parties' separation had to accord with sharīʿa law. The Court found that as the agreement had neither specified an appropriate dispute resolution forum or jurisdiction (common law or sharīʿa law), nothing precluded the court of first instance from adjudicating the case. Secondly, that Magistrate Trad had not considered the meaning of 'divorce' under sharīʿa law, instead determining when the separation had occurred on the facts. The Court also noted that Mostafa had not relied on any expert evidence relating to sharīʿa law, and that Magistrate Trad was in no way required to apply sharīʿa law to interpret the parties' agreement.

Mostafa's counsel conceded the inapplicability of the Property (Relationships) Act but argued that Magistrate Trad had applied it regardless. The Court found it irrelevant whether or not the agreement satisfied the requirements of the Property (Relationships) Act, stating that Magistrate Trad had correctly applied the laws of contract to the agreement.

Mostafa also submitted that as the parties had not been married under Australian law, the agreement was unenforceable because the terms 'separation' and 'divorce', per cl 11 of the agreement, are inapplicable to de facto relationships. The Court agreed to consider whether or not marriage under Australian law was a condition precedent to the enforceability of the agreement, but concurred with Neima's counsel that, among other submissions, the agreement did not specify marriage under Australian law as a condition precedent to the enforceability of the agreement, or to cl 11 specifically. Moreover, that the word 'separation' is distinct from 'divorce' and is applicable to the cessation of a de facto relationship. The Court also noted that the agreement was to secure the parties' individual assets, as both parties had been previously married and had significant assets individually.

With regards to which party initiated the separation and on what date, Harrsion AsJ noted Magistrate Trad's deliberations and that her Honour was unable to rely on any 'so-called independent witnesses' because all the evidence provided by witnesses had been informed by what the parties had told them. Magistrate Trad had, therefore, relied on Neima's evidence that, on 11 April 2007, the parties had argued and Mostafa had waved a knife in front of Neima. That evening Mostafa's daughter, accompanied by a police officer, had come to collect some of Mostafa's belongings and to give her a list separating the parties' belongings. On 13 April 2007, Neima moved out of the parties' unit. While the parties had attempted to reconcile, in September 2008, following another argument, Mostafa said the words 'you are divorced' to Neima. Mostafa denied this, stating that Neima had initiated the separation in September 2008 by asking him to leave their Lakemba unit. Mostafa also denied saying the words 'I divorce you'.

All other submissions made by Mostafa on appeal were dismissed on the grounds that they were not covered in Mostafa's submissions. Harrison AsJ also found that Magistrate Trad had made her findings pursuant to ample evidence. Harrison AsJ noted that this appeal raised religious and cultural issues not previously dealt with by the Australian courts, and that the question of how such agreements should be dealt with would be referred to the Australian Law Reform Commission and NSW Law Reform Commission for their consideration.

The plaintiff (unemployed, aged 21) and the defendant (unemployed, aged 24) were married on 29 April 2012. They lived together in the plaintiff’s parents’ home and had no children. In May 2012 the parties had begun to quarrel regularly. The plaintiff alleged that the defendant had been reluctant to work, and had not fulfilled his obligation to support the plaintiff, resulting in the plaintiff’s parents having to financially support the parties. Problems escalated in June 2012 when the defendant left the plaintiff. The defendant did not disclose his whereabouts and never returned to the plaintiff, providing her with no financial support. The plaintiff claimed to have suffered as a result and requested the Court grant her an irrevocable divorce.

While the plaintiff cooperated with the Court, the defendant failed to attend the proceeding, despite having been summonsed. Due to the defendant's absence, pre-trial mediation, pursuant to s 7(1) of Supreme Court Regulation No. 1 of 2008, was not possible. The Court proceeded in the defendant's absence.

The Court found that the marriage could no longer fulfil the purposes of marriage as envisaged in art 1 of Law No. 1 of 1974 on Marriage, in conjunction with art 3 of the Compilation of Islamic Laws, and that the plaintiff’s reasons for the claim satisfied the requirements of art 39(2) of Law No. 1 of 1974, in conjunction with art 19(f) of Government Regulation No. 9 of 1975, and art 116(f) of the Compilation of Islamic Laws.

The Court granted the plaintiff an irrevocable divorce (talak satu bain sughra) and ordered her to pay all court costs in the amount of IDR 386,000.

The parties were married on 30 August 2006. For the first six months of their marriage they lived in Balikpapan, before relocating to Blitar for one year and nine months. Initially, the marriage was harmonious. After moving to Blitar to live with the defendant's parents, however, the marriage had become quarrelsome because the defendant would frequently leave the home in the afternoon and return in the middle of the night intoxicated. The plaintiff also submitted that the defendant would physically assault her on a regular basis. In 2007, the defendant verbally divorced the plaintiff three times, one in Balikpapan, and twice in Blitar. For the duration of the marriage, the defendant had failed to provide the plaintiff with any money, the parties having to rely on the plaintiff's father for financial support. The plaintiff submitted that, unable to cope with the defendant's treatment of her, she had decided to return to her parents' home in Balikpapan. She requested that the court grant her a divorce for a fee (talak satu khul'i).

Pursuant to art 116(g) of the Compilation of Islamic Laws, the court acceded to the plaintiff's request, noting that the plaintiff had established that the defendant had neglected his spousal obligations, and breached his marriage vows (taklik talak). The court also acknowledged that the parties' marriage was no longer a peaceful, hopeful and loving domestic life, as envisaged by art 1 of Law No. 1 of 1974 on Marriage, and art 3 of the Compilation of Islamic Laws.

This fatwa states that there are two conflicting opinions regarding divorce (pronouncement of talak). The first is that the pronouncement of talak three times at once is akin to the third talak. This opinion was held by the Companions of the Prophet (Sahaba), the Tabi'in (the next generation), and imams of all four schools (mazhab) of Sunni Islamic thought. The counter opinion is that pronouncement of talak three times at once is only akin to the first of three pronouncements of talak. This opinion was held by Thawus, the Imamiyah school (mazhab) of Shi'a Islamic thought, Ibnu Taimiyah, and Ahlu az-Zahir. The fatwa states that the Committee finds the former opinion to be more sound. It also notes that marriage and divorce is regulated for Muslims in ss 10 and 31 of Law No. 1 of 1974 on Marriage, and ss 14-18 of Government Regulation No. 9 of 1975.

The fatwa states that efforts must be made to prevent three pronouncements of talak at once occurring again. Moreover, that if state marriage laws are implemented correctly, there will be no more incidents of three pronouncements of talak at once in Indonesia. The fatwa also acknowledges the significance of the role of the religious courts (pengadilan agama) in preventing such incidents occurring in the future.

The parties were married on 23 October 2013. While they had consummated their marriage they had no children. The plaintiff submitted that the parties' marriage had only been harmonious for five days before becoming quarrelsome. This was because the defendant:

1. suffered from premature ejaculation;
2. had never provided the plaintiff with financial support but had provided his parents with such support;
3. had a tendency to leave the parties' home for two weeks or more on end, never leaving the plaintiff with any money to purchase groceries; and
4. was not transparent about his own finances.

The plaintiff also submitted that three months after their wedding, the defendant had borrowed the plaintiff's dowry (10 grams of gold) for his brother, the defendant's brother promising he would return it within two weeks. The defendant's brother would never return the dowry. Then, on 12 December 2014, the defendant returned to his parents' home ostensibly to pick fresh chilli. He never returned and on the 15th day his parents attended the local imam's home to issue a marriage annulment notice for the plaintiff. Since then the parties had officially separated. The plaintiff submitted that, as a result, the parties' marriage could no longer be peaceful, hopeful and loving (sakinah, mawaddah, warahmah). In order that the parties did not contravene legal and religious norms, the plaintiff submitted that it would be best for the parties to divorce.

Despite the defendant's absence, the court, pursuant to art 39(2) of Law No. 1 of 1974 on Marriage, art 19(b) and (f) of Government Regulation No. 9 of 1975, and art 116(b) and (f) and of the Compilation of Islamic Laws, granted the plaintiff an irrevocable divorce (talak satu ba'in shughra) on the grounds of the parties having been separated for more than two years and ongoing conflict respectively.

On September 23, 2022, the Texas Supreme Court remanded a divorce case to the trial court in which it had originally been heard, deciding that the lower court had erred in its initial judgment. The case involved two agreements that had been signed in 2008 when the couple was first married; one was an Islamic “Marriage Contract,” and the other was an “Islamic Prenuptial Agreement.” The wife sued for divorce, claiming that she had not known at the time exactly what she was signing and had assumed that the prenuptial agreement was just a copy of the marriage contract. The prenuptial agreement stated that any conflicts arising from the marriage were to be “resolved according to the Qur’an, Sunnah, and Islamic Law in a Muslim court, or in [its] absence by a Fiqh Panel,” whose decision was to be “binding and final.” The Texas Supreme Court held that the trial court had erred in determining the enforceability and validity of the prenuptial agreement, and that the conflicts arising from the marriage should be determined by a court according to U.S. law, rather  than by a so-called fiqh panel of Islamic law experts. The Court’s per curiam opinion came in response to an appeal from the Texas Fifth Court of Appeals, whose ruling can be viewed here. 

In its judgment dated October 10, 2023, the Constitutional Court of South Africa (the "Court") interpreted section 7(3) of South Africa's Divorce Act. The relevant provision allowed redistribution orders from one spouse to another in marriages that took place "out of the community of property," where marital assets are kept separate between the spouses at all times. Instead, the section introduced an "accrual system" for out-of-community property marriages, allowing spouses, in the event of the marriage's dissolution, to claim from the other spouse some of the assets accruing during the marriage as equitable relief. While the section has been lauded for protecting financially vulnerable spouses, especially those whose domestic and reproductive labor went unnoticed, the Court still invalidated the section to the extent that it excluded two groups from its coverage: (1) spouses who married out of the community of property without accrual after November 1, 1984 (the section's cut-off date) and whose marriage ended through divorce; and (2) spouses who married out of the community of property without accrual before or after November 1, 1984, and whose marriages ended through death.

The Court's judgment has been interpreted as extending the accrual system protections to these two groups. One commentator, Waheeda Amien (University of Cape Town), noted in her contribution to The Conversation: "The Court's judgment will provide much-needed financial relief to spouses whose marriages out of the community of property without accrual end, regardless of when the parties were married or how the marriage ended."  The same piece also noted the impact of the judgment on Muslim marriages in South Africa: now, spouses in Muslim marriages that are out of community of property without accrual, too, will be able to ask courts to order the redistribution of marital assets in the event the marriage ends. 

The parties were married on 14 September 2013 and had one child. Initially, they lived with the plaintiff's parents for three months in Banda Aceh, before moving to a shop rented by the plaintiff's parents out of which a mobile phone business was operated (also in Banda Aceh). The plaintiff submitted that the happiness in the marriage had begun to dissipate by January 2014 because:

1. the mobile phone business was managed poorly by the defendant's nephew, while the defendant, after spending the day socialising with his friends, would return and coerce the plaintiff into taking the day's takings to meet the parties' own domestic needs, despite not contributing to the business himself, physically assaulting her if she did not comply with his wishes;
2. the defendant would physically abuse the plaintiff while she was pregnant; and
3. the business' lack of success resulted in the plaintiff having to request money from her parents (four times per month).

Problems escalated on 19 February 2015 when the plaintiff refused to return home from an event at her parents' home with the defendant, having already been slapped several times that day by the defendant. When she refused, the parties began to quarrel while still at the event.

Accordingly, the plaintiff sought a judicial divorce on the grounds of ongoing conflict, pursuant to art 19(f) of Goverment Regulation No. 9 of 1975, and art 116(f) and (h) of the Compilation of Islamic Laws. The plaintiff also sought custody of the parties' child on the grounds that the child was under the age of 12 (belum mumayyiz), and should therefore remain with his mother, pursuant to art 105(a) of the Compilation of Islamic Laws, as well as IDR 3 million per month in child maintenance, pursuant to art 105(c) of the Compilation of Islamic Laws.

In a letter dated 15 April 2015, however, the plaintiff withdrew her application for divorce, stating that she and the defendant had reconciled their differences. The Court accepted the withdrawal, and ordered the plaintiff to pay court costs (IDR 466,000).

The parties were married on 5 May 1997 in Dili, East Timor, and had two children. They lived in Dili for two years and two months before moving to Ujung Pandang, South Sulawesi, for one year and five months, before the applicant moved to Atambua in search of employment in 2001, with the respondent and their first child joining him in 2002.

The applicant submitted that the marriage had been harmonious initially, but from January 2010, it had become quarrelsome. In February 2010, the applicant saw the respondent getting a lift on the back of another man's motorcycle. Around March 2010, the applicant saw the respondent with that other man at the parties' kiosk. Problems escalated on 12 November 2010, when the respondent left the parties' home with that other man and the parties' children, without the applicant's permission or blessing, the respondent having confessed to having been physically intimate with the man.

The applicant requested that the Court grant him permission to divorce the respondent, as well as custody of the parties' two children. The Court acceded to the applicant's request for divorce on the grounds of ongoing conflict, pursuant to art 19(f) of Government Regulation No. 9 of 1975, and art 116(f) of the Compilation of Islamic Laws. As the children were both below the age of 12 years (belum mumayyiz), pursuant to art 105 of the Compilation of Islamic Laws, the Court would usually be required to grant the respondent custody of the children, at least until they had reached the age of 12 years, after which they could decide with which parent they wanted to live. That said, the Court noted that the parties' daughter was already in the custody of the respondent and should remain there. With regards to the parties' son, who had been in the care of the applicant, while he was not year 12 years of age, as the respondent did not object to his remaining in the care of the applicant, the Court found it preferable for him to remain in the applicant's care.

The applicants were married on 18 October 2013 by Tgk. H. Hanafiah, the then village imam. The second applicant's younger brother had acted as her marriage guardian (wali nikah), and the dowry (mahar) was five grams of pure gold. Due to a family dispute at the time, the marriage could not be convened at the local Office of Religious Affairs (Kantor Urusan Agama). Accordingly, the applicants requested that the court ratify their marriage retrospectively. Both applicants were eligible for marriage, the second applicant having divorced her previous husband in Lhokseumawe Shari'a Court Decision No. 232 of 2012. The applicants submitted that, while they had already attended the Banda Sakti Office of Religious Affairs to request the issuance of a marriage certificate, the office was precluded from doing so as it could not locate any information relating to their marriage.

The court acceded to the applicants' request, acknowledging that while the parties did not have proof of their marriage in the form of a marriage certificate, they had already married. Moreover, the evidence provided by the witnesses in court did not conflict with the applicants' submissions. Therefore, the applicants' submissions, pursuant to art 7(3)(e) of Indonesian Presidential Instruction No. 1 of 1991 on the Compilation of Islamic Laws, had been established and were grounded in legal reasoning.

The parties were married on 8 December 2010. The plaintiff submitted that, after one year and four months of marriage, in August 2010, the marriage had deteriorated because:

1. the defendant had had an extra-marital affair with another woman;
2. the defendant would often drink excessively; and
3. the defendant was often physically violent towards the plaintiff.

The defendant had left the matrimonial home for his girlfriend's home, where he had remained since 10 August 2010 for the four months leading up to the proceeding. Throughout those four months the defendant had neglected his responsibilities to the plaintiff and never once provided her with any form of support.

Despite there still being some communication between the parties, the plaintiff felt it untenable to reunite with the defendant. Given the parties' evident ongoing conflict, the court, pursuant to art 19(f) of Government Regulation No. 9 of 1975, and art 116(f) of the Compilation of Islamic Laws, granted the plaintiff an irrevocable divorce (talak satu bain sughra). It also ordered, pursuant to art 45 of Law No. 1 of 1974 on Marriage, and art 105(c) of the Compilation of Islamic Laws, the defendant to pay to the plaintiff IDR 1 million in child maintenance per month until the child was self-sufficient.

The parties were married on 3 March 2013 and had no children. The plaintiff submitted, however, that she and the defendant had only been married for one year before they had begun to quarrel regularly. Their quarrelling, she submitted, had resulted from:

1. the plaintiff always having to ask the defendant for financial support;
2. the plaintiff always having to ask the defendant to be physically intimate with her, given her responsibility to her mother and younger siblings to have a child;
3. the defendant not acknowledging the plaintiff's responsibilities to her own family, of which she was the backbone;
4. the defendant not caring about the plaintiff's daily living expenses, including rent payments, which the plaintiff would cover herself; and
5. the defendant lacking initiative and responsibility towards the plaintiff.

The court, pursuant to art 39 of Law No. 1 of 1974 on Marriage, art 19(f) of Government Regulation No. 9 of 1975, and art 116(f) of the Compilation of Islamic Laws, granted the plaintiff an irrevocable divorce (talak satu bain sughra) on the grounds of ongoing conflict.

The parties were married on 23 January 2001 and had two children. The plaintiff submitted that the parties' marriage had been harmonious initially, but, since August 2013, it had become quarrelsome. This was because the defendant:

1. had failed to provide for his family;
2. had had an extra-marital affair; and
3. drank excessively.

Problems escalated and, by December 2013, the parties had separated after the defendant left the matrimonial home. Familial efforts to make the parties reconcile had been in vain and the plaintiff requested that the court grant her an irrevocable divorce (talak satu ba'in sughra).

Despite the defendant's absence from court, on the grounds of ongoing conflict between the parties, the court acceded to the plaintiff's request, pursuant to art 39(2) of Law No. 1 of 1974, art 19(f) of Government Regulation No. 9 of 1975, and art 116(f) of the Compilation of Islamic Laws.

The appellant had requested an additional examination be conducted by the Banda Aceh Shari'a Court (lower court) before the Court handed down its judgment. Content this had taken place, while dismissing the appeal and thereby affirming the lower court's decision to grant the respondent an irrevocable divorce (talak satu bain sughra), the Court noted the following:

1. the child maintenance fees for the parties' two children deemed appropriate by the lower court were unclear in quantum; and
2. so too were the maskan (accommodation) and kiswah (clothing) allowances afforded by the appellant to the respondent.

Accordingly, the Court ordered the appellant, pursuant to art 41(c) of Law No. 1 of 1974 on Marriage, and art 149 of the Compilation of Islamic Laws, to pay to the respondent at least IDR 750,000 per child until the children reached 21 years of age, and IDR 3 million for maskan and kiswah.

The parties had divorced and sought from the Kutacene Shari'a Court (lower court) an order to have their joint assets stipulated and split. The lower court stipulated their joint assets as a shophouse, several parcels of land, a house, 15 household appliances, and a motorised-trishaw (becak), and ordered that the necessary measures be taken by the parties to ensure an even 50/50 split.

While the appellant sought to challenge the decision, the Court found that the appellant had incorrectly executed his power of attorney to grant power to his legal advisors to act on his behalf. Rather than specifying the court as the Aceh Shari'a Court (Mahkamah Syar'iyah Aceh), the appellant had written the Banda Aceh High Shari'a Court (Mahkmah Syari'ah Tinggi Banda Aceh). While the power of attorney document had been furnished with the necessary stamp duty, it was also missing signatures and the date. Accordingly, the Court dismissed the appeal.

The applicant had submitted a marriage ratification request to the court, dated 8 January 2010. The request stated that she and M. Yusuf bin Jafar (deceased, 29 December 2009) were married in accordance with Islamic shari'a on 10 June 1949, with her older brother Muhammad Yunas acting as her marriage guardian. The marriage was witnessed by two other persons, the names of whom the applicant could not recall. The applicant's dowry was IDR 40.

The applicant required a marriage ratification certificate in order to access her deceased husband's pension, life insurance, and widow's pension. The marriage had never been registered pursuant to current legal provisions. The applicant and her husband, however, had seven children, all of whom were now adults. Moreover, they had never divorced and no one had ever had any objections to their marriage.

In acceding to the applicant's request, the court cited arts 7(2) and (3)(d) of the Compilation of Islamic Laws, which granted it powers to solemnise a marriage, as well as one that preceded the enactment of Law No. 1 of 1974 on Marriage. The Court also cited the rule of fiqh contained in Kitab Tuhfah Jilid IV, which mandates the recognition of the marriage of a woman who is of age and sound mind ('aqil baligh).

This Supreme Court pronouncement states that the wife is to receive three-quarters of joint assets, because those joint assets were yielded by the wife, and the husband failed to provide financial support to his wife and child for 11 years.

The parties were married on 8 April 1995 and had two children. Since 1998, the parties had quarrelled. On 9 November 2008, the plaintiff, the parties' daughter, and their maid left the matrimonial home, after being driven out by the defendant. The parties had remained separated since.

In seeking a divorce, the plaintiff also sought from the defendant IDR 2 million per month in back-dated child maintenance, as the defendant had failed to provide the plaintiff and their children with any financial support since 1997 (132 months). Furthermore, the plaintiff sought custody of the parties' children, and IDR 5.5 million per month in child support going forward.

The defendant unsuccessfully challenged the Yogyakarta High Religious Court's decision (34/Pdt.G/2009/PTA), the Supreme Court, for all intents and purposes, reaffirming the Yogyakarta Court's decision. The Yogyakarta Court, however, had not acceded to the amounts in financial support sought by the plaintiff, ordering the defendant to pay to the plaintiff IDR 750,000 per month in child maintenance, until that child reached 21 years of age.