As different family laws apply to different communities within the same national legal system, by right, there should be minimal interrelationship. However, on the few occasions that they intersect, there is much confusion and tension created as much by adjective law and juridical issues as the conflicting substantive family laws.
The family law in Malaysia now comprises of Islamic law for all Muslims contained in state legislation comprising administrative provisions and the substantive law based on the Qur’an and Sunnah (the primary sources) and authoritative interpretations (fiqh) and since 1976, the Law Reform (Marriage and Divorce) Act (hereafter ‘the Act’) for all non-Muslims.
The separation extends to the courts; Syariah courts for Muslim family matters, which is the substantial part of its jurisdiction anyway, and it is a state entity; and the civil court, a federal entity, for non-Muslim families.
The Syariah court is prohibited by the Federal Constitution from assuming jurisdiction over non-Muslims. Notwithstanding the same provision spelling out that the matters listed in it (mainly family matters) are within the jurisdiction of the Syariah court, the civil courts have encroached on the remit of the Syariah courts, in some instances, even in the same case. To overcome this problem, the Constitution was amended to provide that the civil court will not encroach on matters within the jurisdiction of the Syariah court. However, the separation is still not complete.
The legal issues and problems that may arise upon conversion may be adumbrated as follows-
First, in Muslim family law a Muslim cannot marry a non-Muslim, so upon conversion the marriage becomes invalid after a fixed period; the Act requires that it be formally dissolved. Secondly, the Act recognises conversion to Islam as a ground for divorce (Sec. 51) and an imperative one at that; the 2-year minimum period of marriage that must elapse before a petition may be presented, is dispensed with (Sec 51 (3)}.
Thirdly, the converting spouse is not allowed to petition for divorce; he may appear in the civil court only in response to the proceedings initiated by the non-Muslim spouse (Sec 51 (1) of the Act). The question is, if the converting spouse is the wife, and acting on the strength of a declaration by the Syariah court that she cannot remain married to a non-Muslim, she marries again, is she guilty of any offence? And if her non-Muslim ‘husband’ refuses to divorce her or is lackadaisical about it, what are his rights against her?
Fourthly, if the non-Muslim spouse does not petition for divorce, does the non-Muslim spouse entitled to the estate of the Muslim spouse?, and what are the rights of the Muslim who has married the converting spouse?
Fifthly, which law is to apply – the Act or the Syariah to the dissolution of the marriage and the custody of the children? They are human beings in their own right, and unlike other interests between their parents. In terms of religious upbringing of the children; each parent would want to raise the children in his/her religion. The children are often too young to decide the matter on their own (on top of the emotional turmoil of the breakdown of their family life), and religious education from the earliest stages of life is often decisive, and favours the parent with custody.
Sixth, which court is to decide? Strictly speaking, this is not a substantive family law question but experience has shown that it has complicated matters with the civil and Syariah courts making conflicting, pre-emptive decisions.
It is in urgent need of reform before the question of what law is to apply to both parties is addressed. Some converts maintain that the civil court has no jurisdiction over them as such matters are with the Syariah courts, and they are, after all, statutorily precluded from going to the civil court. Non-Muslim spouses maintain that as the marriage was contracted under the civil law, the civil court retains jurisdiction.
The real issue is that the Muslim spouse is allowed to go to the civil court only if the non-Muslim goes there first; the Muslim’s interests may become academic particularly in custody matters where the children are with the non-Muslim parent and the latter decides to wait till the children reached adulthood before applying for divorce, and in the meantime applies only for maintenance from her Muslim ‘husband’.
For these complex questions to be resolved, there should to begin with, be only one forum for both parties to go to as of right. Why does the Act give the right only to the non-Muslim spouse to petition for divorce? The Royal Commission on Non-Muslim Family Law Reform (hereafter the ‘Ong Commission’), which drafted the Act, took the view, as it said so in its Report, that married individuals, nearly always men, converted to Islam only to escape their obligations under their existing marriages which is, of course, insulting to Islam and Muslims. Presumably, their innocent non-Muslim spouses are to decide on the sincerity of the conversion and petition for divorce or imprison the Muslim spouse in a marriage that had broken down in a fundamental sense in that different laws applied to the two spouses.
The failure to amend section 51 of the Act is all the more difficult to understand as other provisions have been amended to ensure that the non-Muslim wife’s rights are not affected by the other spouse’s conversion to Islam, and should discourage conversion to Islam for the perceived purpose of avoiding marital obligations.
The position taken by the Ong Commission is also incompatible with its avowed aim to do away with ‘fault’ in the sense of matrimonial misconduct as the basis for divorce, and to replace with the modern concept of ‘breakdown’ of the marriage: whether taking the relationship in totality the marriage could be said to have broken down irretrievably. Conversion to Islam though a right under Islamic law and the Federal Constitution is as far as the Act is concerned to be seen as a matrimonial offence for which the converting spouse has to be put at a considerable disadvantage.
In providing that the Muslim spouse should remain trapped in a marriage that has broken down, the legislation goes against one of its principal considerations of the Ong Commission that estranged spouses should be given an expeditious dissolution of their marriages.
Authoritative Muslim and non-Muslim family law scholars and lawyers are of the view that the Act should be amended to allow the Muslim spouse to go to the civil court on his/her own initiative as the marriage was at its inception a civil law marriage. In fact, as matters stand, the law applicable to the Muslim spouse’s position is the civil law where the non-Muslim spouse had gone to the civil court first and the Muslim spouse merely responded.
If the amendment had been made in time, the civil court could by now have developed a jurisprudence appropriate to the religious identity of both parties. The only important caveat I would add is: the civil court must take into account the Muslim spouse’s position under Islamic law and try to achieve a middle ground.
After three decades of its existence and the anguish it has caused to Muslims and non-Muslims, section 51 is said to be amended to allow the converting spouse to initiate proceedings in the civil court. To reduce uncertainty to the minimum, there will be specific provisions on most questions.
Unlike the Ong Commission, since 2006, the Attorney-General has organised series of face-to-face meetings between Muslim and non-Muslim groups to arrive at fair, practically negotiated, solutions to all questions of ancillary relief consequential upon divorce. To both Muslims and non-Muslims the discussions have been salutary; they had to think not only in terms of what was demanded by their side only but had to think in terms of what was and fair and acceptable to both sides. And Muslim representatives, exhausted the whole range of interpretations of Islamic law to find solutions rather than relying on some basic propositions. However, they had to be extra careful because not only taking into account that the Sultans are heads of religion in their respective States, but observing Islamic law and teachings in all aspects of life is the overarching Islamic duty of all Muslims encompassed in the concept of tauhid.
It is expected that that the earlier provisions having been accepted by both sides (without any further interventions from unseen hands), will be an interesting instance of harmonisation of Malaysian civil law with Islamic law and will be a truly Malaysian contribution to the resolution of conflict of laws within a national legal system.