Mothers who had to fight hard for child custody after a divorce

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Source: The Star Online

Stories of women who had to fight for the custody of their children after a divorce. Photo: The Star/Azman Ghani

Stories of women who had to fight for the custody of their children after a divorce. Photo: The Star/Azman Ghani

Aida goes up against the legal system

Aida has been trying to get a divorce from her estranged husband for four years. She’d been abused throughout their marriage and to add insult to injury, he’d taken a second wife without her knowledge. Still, she has been unable to obtain a divorce.

“He refuses to talak and the judge is unwilling to step in even though I have multiple police reports documenting the abuse I have experienced. According to my husband, since want a divorce I have to pay for it, literally, until he is ready to talak,” says the teacher who has raised her three children on her own for the past four years.

Aida’s husband has not fulfilled his duties as a husband and father, but he refuses to grant Aida her divorce out of spite, and because he knows the law favours him.

Muslim women face unequal rights when seeking a divorce. Unlike non-muslim women who have equal rights to marriage and divorce as men under the Law Reform (Marriage and Divorce) Act 1967 (LRA), says Aliah Ali, communications officer for Sisters in Islam.

“The lesser rights result in some cases extending more than eight years, either because of a husband’s refusal to pronounce talak (a husband’s unilateral right to divorce) or because of a Syariah judge’s reluctance to proceed with a divorce application through other means such as fasakh (a wife’s right to seek divorce) or taklik (annulment) when a husband is purposely absent in court,” says Aliah.

Under Islamic Family Law, a husband has the exclusive power to divorce his wife by way of talaq: just by saying “I divorce/talaq you”. A muslim couple can also obtain a divorce by mutual consent. However, things get unpleasant and messy when a wife wants to obtain a divorce without her husband’s consent – cerai fasakh or taqliq. In both cases, the woman will have to apply to the court and the onus is on her to prove to the court that her spouse has broken certain conditions in the marriage contract or that he has caused her harm and so on.

But in Aida’s case, even with police reports on her side, the judge was reluctant to grant her a divorce.

Women like Aida face lengthy divorce proceedings and endless delays in court. Even though the law provides that the hakam (arbitrator) appointed by the court can pronounce divorce on behalf of the husband if both parties fail to reconcile or reach an agreement, many judges are reluctant to use this provision.

Instead, they have to face the tedious bureaucracy of the court system. “For example, a woman seeking divorce has to file an application for each maintenance claim, all of which cost money to file and time in court. Each visit to the court means a day without pay for women who earn daily wages, ” says Aliah.

Women in polygamous marriages face further injustices in claiming wife and child maintenance, she points out.

“Because of the setbacks in the system that allow financially unstable men to practice polygamy, many wives are forced to become heads of their households. They are often like single mothers, becoming the protectors and providers for their children even though legally, they have a husband,” says Aliah.

When children are involved, things get even more unpleasant because issues of custody come into play. Some husbands use their children as pawns to get back at their wives for initiating a divorce.

The hurdles may be there but many women have persevered to gain their freedom and validation.

Sofia refuses to quit

Sofia lost her son, Aiman, when she decided to leave her abusive husband. He simply took the boy away and kept her from seeing him.

For two years, Sofia fought tooth and nail to get Aiman back. She hired a well-known lawyer, even though the fees were steep as she wanted the best representation.

“It wasn’t easy. I was fighting depression from being separated from my baby. I was wrecked with worry as he was still breastfeeding and I missed him. But at the same time I had to be strong. I had to get things going. I trusted that even though it may take a while, I would get justice and my son back,” says the 35-year-old entrepreneur.

Still, it was an arduous process and Sofia came to realise that winning in court didn’t always yield positive results.

“When the court granted me temporary custody of my child a month after he took my son, I thought I could finally see him. But my husband refused to cooperate and his family began harassing my family and I. To my horror, neither I nor the police could to anything about it. I had to file two additional cases – notis tunjuk sebab (show cause) and kommital (to commit the offender to prison). I paid an additional RM10,000 for legal fees,” relates Sofia who estimates that she spent at least RM50,000 on legal fees alone.

Even with all that, it’d take almost another year before Sofia saw her son.

At no point did Sofia think of backing down, not even when the bureaucratic hurdles seem insurmountable.

“There are many women who have been through similar situations and, like me, most don’t know what to do. So, I started an online forum to share my experiences so others could learn from my mistakes. I’ve learnt a lot from what was shared in the forum too and I received a lot of support and encouragement from women which helped keep my spirits up,” says Sofia.

Fadilah goes all the way

Manager Nor Fadilah Mohamed Nizar refused to bow to her ex-husband’s delaying antics in court.

Fadilah was only granted a divorce eight months after she applied for it in court, after several postponements because her ex-husband claimed he wasn’t ready for the trial and just didn’t show up at court. Although she had agreed to give him custody of their then three and-a-half-year-old daughter, the judge stipulated that she was to get visitation rights.

But Fadilah’s ex-husband refused to let her exercise those rights – she wasn’t allowed take her little girl home with her. He even punched and kicked her at their daughter’s kindergarten when Fadilah went to pick her up.

This marked the beginning of yet another round of court appearances and more postponements. After her case was postponed three times due to “other cases of a higher priority”, she decided to act. Fadilah highlighted her case in a newspaper. to The Star. Within a month, she was granted her day in court.

But her battle has not ended.

When her case was postponed because a key witness – the doctor who treated her injuries – was absent, she decided to find out why. It turned out that the police could not serve the subpoena as they don’t know where she was. So, Fadilah and her social worker from Women’s Aid Organisation Yogasri Sivanyanam traced the doctor and accompanied the police to subpoena her to court.

After almost three years, Fadilah finally got the justice she was seeking. Last month, her ex-spouse was sentenced to a month’s jail time and fined RM10,000 for causing grievous hurt to her.

“It’s over, finally. I feel great. Secure, happy and thankful,” says Fadilah who is waiting to take her daughter home with her again after four long years.