There are many names used for the same purpose, including Marital Settlement Agreement (MSA), Property Settlement Agreement (PSA), Divorce Settlement Agreement (DSA), Separation Property Settlement Agreement, Divorce Settlement contract, etc. The Islamic Marriage Settlement can include many other terms such as Mahr (i.e., an obligatory bridal gift given from husband to wife at the time of marriage) and Iddah (i.e., the waiting period for widow before remarrying). These terms are crucially important; ignoring them can disqualify an agreement under Shariah or Islamic law. The contract scope may include custody and care for children, spousal support for maintenance, and many conditions related to assets and properties.
It is never considered a game changer when we start life with a happy marital time. For many, it's a change for good; for others, it ends up in the dissolution of marriage. When the dissolution of marriage takes place s, there is a lot behind regarding emotional and psychological trauma, and finally, documentation.
The only possible way is by correctly putting all the ducks in a row by drafting an optimal Marital settlement agreement that is complete, practical, efficient, and reflects the couple's ultimate wishes before going apart.
It's a safe bet to say that in over 90% of divorce cases, the spouses reach a settlement at some point before going to trial. And thank goodness for that, because if they didn't, a lot more people would be waiting years before their divorce was final. Some couples resolve their differences before they even file for divorce. Others settle while the divorce is in progress. But regardless of the timing, virtually all of these cases have one thing in common—the preparation and signing of a written marital settlement agreement. - Cortesy of Nolo Will maker Quote
It's important to remember that changing the Divorce agreement is difficult and creates many complications. So, following the process is essential so you do not have to modify your agreement. Let us go step by step to understand further the elements and process of a Muslim Marital settlement contract.
1. ALLOW RESET TIME
There are always ways when things change, and the mind reacts differently. So, allowing some time can resolve issues itself. Respecting human behavior, Emotions and anxiety settles over time in an hour to a few days. Similarly, a computer reset can resolve technical issues. In some scenarios, both parties may not have any other option than to proceed to the next step. Our aim should be as follows.
Try for reconciliations. Engage mediators if reconciliations cannot be achieved within.
If there is no other option, prepare for an uncontested divorce.
Reaching an amicable settlement is the goal, but the key is being open and willing to compromise because it will require much time, effort, and cost if disagreement ends in court.
Create the Divorce settlement agreement respecting moral, legal, and shariah principles.
Enforceability by court comes through decree as long as parties have agreements. But Islamic laws of Mahr (i.e., Obligatory bridal gift given from Husband to Wife), Iddha (i.e., the waiting period for a Muslim Widow), and Mawarith (i.e., laws of Islamic inheritance) in addition to moral and legal laws.
2. MAKING A DECISION
One of the most important discussions that should happen is about managing children after divorce. They must be taken care of without doubt, and judges may impose some laws and legislations during settlements. Before it becomes a big court matter, it is always wise to discuss it with the spouse and come to an agreement. In case of disagreement, the only way to resolve it is through court. Additionally, If you are on the path to filing a divorce, think through and list out the following items and share them with your spouse so that the divorce processing in court becomes easy. Assets we refer to below include but are not limited to Houses, lands, farms, recreational properties,cash, bank accounts, savings, investments, retirement or pension plans, insurance proceeds, vehicles, furniture, belongings, collectibles, clothing, computers, digital devices, tools, equipments, movable and immovable properties, intellectual properties (website, books, artwork, trademark, patent, and other creative work) etc.
Asset information from previous marriages (if applicable).
Asset acquired during marital life by both couples.
Sort out whether the property time is separate (i.e., Tenant-in-common) or jointly owned (i.e., joint tenants, community property).
Tax accounts include personal and business. You may be filing joint or separate income tax or business returns. Now is the time to organize how it can function after divorce.
Previous agreement made (i.e., Prenuptial or Postnuptial Property Agreements). If you have drafted a Prenuptial or Postnuptial Marital agreement, this is the best time to pull it out and look at the details. It would reduce most work during this process when you had a draft Marital Property Agreement. If not, then that's alright, and proceed to the next step.
Marriage contract (i.e., Nikah Nama).
3. COST FOR DIVORCE
Court for divorce can be broken down into the following, which can vary if your divorce is contested. The cost below is very approximate and can vary by country and jurisdiction. Optimizing your strategy by learning more about divorce settlements can save time, effort, and cost. Sometimes, if you find a reconciliation option, you do not pay anything but live the rest of your life peacefully.
Filling cost for the court ($100-$300).
Divorce agreement creation cost ($100-$500). Online services may cost less.
Mediator cost ($100-$300). Professional mediators can cost more than community providers.
Attorney's cost for counseling ($100-$300). Cost can vary between non-legal or legal firms.
4. AVOID CONTESTING DIVORCE
Courts usually do not interfere as long as couples have agreements. When everything is laid out in the agreement, and both spouses accept, that is called "Uncontested divorce." which the court can consider binding if no unfair treatment is observed in the agreement. Keeping discussion open, willing to compromise, and avoiding coercion can reduce the chances of contesting. A couple suggested reading every clause in the agreement multiple times and ensuring that your mind and heart are satisfied. So that it will leave no room for confusion when it goes to court for the final verdict; also, ensure there are no errors or omissions because discovering such silly mistakes can be costly and difficult to modify later. Also, you lose confidence in the judge when so many inaccuracies are observed in the document. General requirements are as follows for the "Uncontested divorce" to save the time, effort, and cost of divorce that negates the legal discovery requirement for providing more evidence to one or more parties. The most awful is that the court controls the agreement and decisions when the divorce is contested. Spouse's cordial relationship turns bitter in contested divorce because now it will be treated as any other court matter, and spouses were challenged during the process, creating an unpleasant environment. Sometimes, it takes months and years to finalize the contested divorce.
Both spouses must agree on any pending issues related to divorce regarding child custody, assets, and spousal support, as these are the main parameters that shall be considered to finalize Divorce uncontested.
An agreement must be signed that captures all issues you may have.
Before applying for "Uncontested divorce" in a local court, the residency requirements by country (and jurisdiction) must be met, and the waiting period must be over before you can meet the judge.
After the aforementioned criteria are met, now is the time to file a petition in court for divorce.
Preparing for appearing before the judge for any questions the judge may have regarding your agreement. Sometimes, the judge can review and approve your contract without seeking clarification. However, any disagreement during an appearance in court can convert to "Contested divorce." which will take more time, cost, and effort to finalize the divorce. Another reason for contesting divorse is the errors or issues in the agreement.
Once the court approves the final divorce, the file is formally closed. Any changes beyond this point would require you to follow the country (and jurisdiction) process as required. Usually, when one of the spouses is disgruntled with the agreement, he or she may file a petition to contest the divorce.
5. PREPARING CONTRACT
Without a Marital settlement agreement, you can settle a divorce if you get a written Divorce judgment from the court after verbal confirmation from the couple. Without a written contract, it may become messy due to accountability from either side on breaches and violations. Enforcement of contracts becomes smooth in writing rather than discussion and debate verbally. You can use attorneys or other service providers to draft a solid settlement agreement with the optimum outcome. Drafting your agreement yourself is not a good idea. There is much to go in; missing one or more items can become a nightmare after divorce. Wassiyyah provides service in drafting agreements that comply with the Islamic faith and legal laws. And we will provide some actionable items in the instructions guide as part of the agreement to comply with legal laws. While a divorce settlement requires information, detail, and specificity, keeping it simple and free from ambiguity and complex wording is the best practice. Using more complicated language can create misunderstanding and the opportunity for vague discussion during the settlement process. The following are the important points that Wassiyyah considers when drafting an agreement.
The preamble declares the intention of the parties. The petitioner (one party) submits the request to the respondent (another party).
Declare personal information of Husband, Wife, and Children.
Declare the premarital and postmarital assets, debts, and liabilities.
Provision to comply with Shariah ruling without compromising legal laws.
Separability to limit the Country and Jurisdictional law.
Provisions for Alimony (i.e., Spousal maintenance support).
Provisions for Children's custody and visitation support (Joint custody or Designating one Parent).
Provisions to restore the spouse's maiden name.
Full or Sole legal custody of child or children.
Exclusive Possession of Matrimonial Home.
Timely indemnify and hold harmless in any unfortunate situation when promises are not met.
Relinquish and waive all future claims to limit the divorce settlement extensions.
6. MEDIATION
Discussions about assets, children, and spouse support are critical issues that become emotional. Before it goes out of track, you should involve a Muslim mediation legal or non-legal firm from a Mosque, association, or organization registered to provide this service. There are many Islamic implications for divorce, so we strongly recommend this approach. One of the limitations for attorneys and mediation firms is that they can not assure whether the agreement is fair or unfair. It is only determined by competent court authority when presented by a couple.
7. TIME TO CREATE AND SIGN
You can create this agreement when you separate and decide to file a divorce or file a divorce. It's up to you to sign the agreement. If you do not sign, no one can force you to sign. Delaying signing can have positive and negative consequences depending on the situation. Following are a few examples that can give you some insight.
A couple made up their mind to get divorced. The husband keeps delaying signing for some reason. The Wife thought through and decided to change her mind. She shared with her husband to reconcile. Both agreed, and their family went on the peace. So, this is the positive impact of going apart.
A couple decided to file a Divorce settlement case. For some reason, it got delayed until one of the spouses died. The surviving spouse got an inheritance from the deceased. The life went on. This is another example that becomes beneficial for delaying.
A couple decided to file a Divorce. The agreement was created and signed. Their Islamic divorce (i.e., Talaq) had already occurred, but only civil diversity was pending. A surviving spouse decides to hide the Islamic divorce to get the inheritance. This is the case where delaying agreement ended up in Shariah non-compliance.
A couple created an agreement for diverse settlement, and all the civil law formalities are completed regarding the divorce, but the Islamic repudiation (i.e., Talaq) is still pending when one of the spouses dies. The surviving spouse did not get an inheritance legally because diverse settlements are legal. So, this is an example of a surviving spouse who is still married Islamically but cannot get an inheritance, and it poses noncompliance with the Islamic law of succession.
A couple divorced Islamically, but civil divorce is still pending. Both spouses die in a car accident, leaving with many children. The children, relatives, executors, and trustees were unaware of the couple's Islamic divorce. They did not consider any Islamic implications of divorce and distributed the estates as per Islamic law. This extreme and complex scenario requires much thinking and resolution to meet Shariah and legal compliance.
8. ENFORCEABILITY
You can enforce the agreement by submitting a motion or petition in court. Once the court satisfies that the contract is fair, then the contract will be approved for enforcement. It may require more than one appearance or trial in the court if the court finds any missing agreement between spouses. The judge's duty is not to draft the marital settlement agreement but to review and approve it until it is satisfied that the child's best interest would not be compromised. However, there are times when it does not go as planned after court approval, such as in case one of the spouses does not follow the terms of the agreement. In this case, a suffering spouse can request the court for such enforceability. Not all issues are required to be resolved in court. Sometimes, having an open discussion or involving mediation can resolve issues.
9. MODIFICATION
Modification or updating the Marital divorce agreement is straightforward. However, it must undergo court approval every time you change this contract. The key is that parties must agree on changes they want to make; otherwise, it may become impossible. In another scenario, the court cannot allow the modifications if it is unfair to the child's best interest or spousal maintenance support. The court decision may differ from one case to another.
10. RESTRICTIONS
You should know the following important restrictions concerning the divorce decree issued by a competent court and Islamic divorce (i.e., Talaq).
Parties cannot consider them divorcees until a full Judicial decree is issued regarding the termination of the marriage.
Parties cannot distribute assets as per agreement.
Parties cannot remarry. This restriction is for most non-Muslim Majority countries where Islamic law is not the primary law.
Irrespective of the case, whether a divorce decree is issued by the court, Islamic Divorce (i.e., Talaq) must be closed; otherwise, marital and inheritance rights stay intact for both parties.