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Family Law

Legal History:

The legal system is based on English common law, with both Islamic law and ‘adat constituting significant sources of law, particularly in matters of personal status.

Parts of present-day Malaysia were under Portuguese and Dutch control, and starting from Penang in the late 18th century, the region eventually came under British rule, formalised by the Anglo-Dutch Treaty 1824. Malaysia and Singapore were the eventual successor states to the Straits Settlements (Penang, Singapore, Malacca), Federated Malay States (Selangor, Perak, Pahang, Negri Sembilan) and Unfederated Malay States (Perlis, Kedah, Kelantan, Trengganu, and Johor). Sabah and Sarawak, formerly constituents of British Borneo, later joined Malaysia.

Under British rule, the first legislation regulating Islamic marriage in the Straits Settlements was the Mohammedan Marriage Ordinance 1880, mainly procedural in content. The Ordinance was amended in 1908 to make registration of marriage and divorce compulsory, non-compliance being punishable by fine or imprisonment. A 1923 amendment directed the application of Islamic law to intestate succession of Muslims insofar as local custom would permit, and without disinheriting non-Muslim kin. The Ordinance continued to be applied in Penang and Malacca until State Acts were passed in 1959. The first codification of Malay customary law (a mixture of ‘adat and Islamic law) came in 1915 with enactment of Laws of the Malay Courts 1915 in Sarawak.

The region was occupied by Japanese forces from 1942 to 1945, with control reverting to the British after WWII. A legislative assembly was established in 1955 and independence achieved in 1957. From 1948, the States were granted jurisdiction over application and legislation of shari’ah and from 1952 to 1978, new laws were promulgated in the eleven Muslim-majority States of Malaysia and Sabah, generally entitled Administration of Islamic/Muslim Law Enactments and covering the official determination of Islamic law, explanation of substantive law, and jurisdiction of syariah courts. New laws relating to personal law were enacted in most States between 1983 and 1987.

Efforts by Kelantan State to pass a Syariah Criminal Code Enactment 1993 relating to the application of hadd penalties resulted in a stand-off between the Federal and State governments. It was passed by the State legislature but never brought into force. It was a matter of much controversy as criminal matters are within Federal and not State legislatures’ jurisdiction.

 Schools of Fiqh: The majority of Muslims are Shafi’i, with Hanafi minorities. There are also significant Buddhist, Hindu and Christian minorities and a high proportion of followers of indigenous religions, particularly in Sabah and Sarawak (both States are Muslim-minority).

 Constitutional Status of Islam(ic Law): The Constitution was adopted on 31st August 1957 and has been amended several times. Article 3(1) declares Islam the official state religion as well as guarantees religious freedom. Articles 3(3) and (5) provide that the Ruler of each State is the head of the religion of Islam by the Constitution of that State. In the absence of a Muslim ruler (in the States of Malacca, Penang, Sabah and Sarawak) or in the Federal Territories (Kuala Lumpur and Labuan) Yang di-Pertuan Agong (Head of State) is declared the head of the religion of Islam.

The Ninth Schedule of the Constitution outlines the legislative lists. Malaysia is a federation of 13 States with both State and Federal level executive and legislative powers; civil law (and family law as a subset of civil law) come under the federal legislature’s jurisdiction, but persons of the Malay race are defined as Muslims under the Constitution and the States are empowered to make personal laws governing Muslims and laws relating to religious offences, and to establish and regulate syariah courts for the application of Islamic law. Personal status law relating to non-Muslims is within the Federal legislature’s jurisdiction (governed by the Malaysian Law Reform (Marriage and Divorce) Act 1976 that repealed all previous statutes on marriage and divorce governing non-Muslims). Clarification of points of Islamic law comes under the jurisdiction of each State’s Majlis (Council of Religion and Malay Custom). The Majlis’ generally issue fatawa that are in keeping with Shafi’i tenets except where such may conflict with public interest. In such instances, the Councils (with the approval of State authorities) may follow minority Shafi’i views or interpretations from other three major Sunni madhahib.  

Court System:  There are three levels of syariah courts in a system parallel to and independent of the civil courts: Syariah Subordinate Courts, Syariah High Court and Syariah Appeal Court.

Syariah Subordinate Courts have jurisdiction as indicated by state legislation over criminal suits liable to punishment up to 2,000 ringgit and/or imprisonment up to two years and civil suits in which the value of the subject in dispute is up to 100,000 ringgit or not estimable in cash.

The Syariah High Court has appellate jurisdiction over Subordinate Court decisions in civil suits of 500 ringgit or more and criminal suits. The Syariah High Court has original jurisdiction as indicated by state legislation in criminal suits and civil jurisdiction over betrothal and marriage, divorce, nullification or separation, marital property claims, maintenance of dependants, legitimacy, guardianship and custody, testate and intestate succession, gifts inter vivos and awqaf, in cases where all the parties are Muslims.

The Syariah Appeal Court has appellate jurisdiction over decisions arising out of the Syariah High Court’s original jurisdiction; all appeals are heard by the Chief Syarie Judge and two other members and decisions are by majority opinion.  

In September 2000, the government announced that it would establish a separate family court.

Notable Features: The minimum marriage age is 18 for males and 16 for females, with provision for judicial permission for underage marriages. A valid marriage requires both parties’ consent as well as the consent of the wali or syariah judge if no wali is available; compulsion of wards or unreasonable objection to their valid marriage is punishable by fine and/or imprisonment.

Marriage registration is obligatory; both parties must apply to the Registrar for permission to marry at least seven days before the wedding. Marriage is not to be solemnised except in the kariah masjid of the woman’s normal residence or by special permission to marry elsewhere. The Registrar is required to record the value and contents of items of dower given and promised at the solemnisation of marriage. There is provision for the appointment of Registrars in public offices as well as in kariah masjid. Non-registration is punishable by fine and/or imprisonment although it does not determine the validity of marriage.

Polygamy is allowed with judicial permission, contingent upon application to the court and a hearing with existing wife or wives. The court requires proof of necessity (e.g., first wife’s sterility, physical infirmity, wilful avoidance of restitution order, etc.); proof of financial capacity; guarantee of equitable treatment of co-wives; and proof that the proposed marriage will not lower the standard of life of the existing wife or wives and other dependants. Contravention of the application procedure and permission requirements is punishable by requiring immediate payment of any outstanding dower to the existing wife or wives and by fine and/or imprisonment.

The wife’s right to maintenance is subject to classical definitions of obedience. The wife may obtain a maintenance order from the court in cases where her husband fails to provide maintenance; the levels and period for which the wife might sue for arrears are not specified. The wife’s disobedience can result in restitution order or punishment of fine.

Extra-judicial repudiation is punishable by fine and/or imprisonment. A husband wishing to pronounce talaq is required to apply for judicial permission, outlining his reasons as well as the amounts of payments of nafkah edah (‘idda period maintenance), mutaah (consolatory gift) and maskahwin (dower) he intends to make and provisions for the division of harta sepencarian (matrimonial property). If a court hearing determines the consent of the other party and the irretrievability of the breakdown, the court advises the husband’s pronouncement of a single talaq and registers the divorce. If the other party disagrees or the court is not convinced of irretrievable breakdown, the court begins conciliation efforts. The conciliation committee has up to six months to effect a conciliation; if the committee fails to do so, it issues a certificate of its failure, including any recommendations regarding custody, maintenance, division of property, etc. (The Act only provides penalties for extra-judicial repudiations and does not refer to their validity; courts tend to adjudicate on the validity of a talaq pronounced outside of court on the basis of classical law.)

The wife may apply for judicial dissolution on the following grounds: the husband’s disappearance for over one year; failure to maintain for three months; sentencing to three years or more in prison; failure to perform marital obligations for one year; continued impotence, if the wife was unaware of it upon marriage; mental illness lasting two years or leprosy, vitalgo or communicable venereal disease; the wife’s repudiation of a marriage concluded by her father or grandfather before she attained 16, if she is below 18 years and the marriage was not consummated; cruel treatment; husband’s refusal to consummate for four months; invalidity of her consent (obtained under duress, mistaken, etc.); and any other grounds for dissolution or nullification recognised in hukm shar’. A wife divorced without just cause may apply for maintenance during her ‘idda and mut’a, levels of which are to be set by the court.

The court also divides assets acquired by joint effort during marriage, and may also order the division of assets acquired by sole efforts, with consideration of the contribution made by the other party in terms of housework and caring for the family, though the other party will in all cases receive the smaller portion. The divorced wife is also entitled to reside in the marital home during the ‘idda or until the expiry of her custody or her remarriage, if the former husband cannot provide other suitable accommodation.

The divorced mother is entitled to custody over boys until 7 years and girls until 9 years, subject to classical conditions. The court may extend custody to 9 and 11 years respectively upon the hadina’s application. After the expiry of the hadinah’s custody, the father becomes custodian, with the proviso that wards having reached the age of discernment may choose with which parent to live, unless the court directs otherwise.

Succession is governed by classical law as modified by Malay custom. This is particularly important in rural areas and with reference to the inheritance of land, as all Malay ‘adat have specific rules on inheritance of land and such rules are often inconsistent with Islamic law. For example, inheritance in Malaccan ‘adat is matrilineal.

Notable Cases:

 Law/Case Reporting System: Case reporting of Federal Court and High Court decisions is through the Malayan Law Journal. Law reporting is through the Federal and State Official Gazettes. Some Syariah Court judgements are included in some issues of the Syariah Law Journal of the International Islamic University of Malaysia.

 International Conventions (with Relevant Reservations): Malaysia acceded to the CEDAW in 1995 with a number of reservations relating to discriminatory aspects of customary and personal status laws and discrimination to appointments in public office (particularly relating to the offices of mufti or qadi). These reservations were withdrawn in 1998. The reservation to Article 11 on elimination of discrimination against women in employment still stands, stating that "Malaysia interprets the provisions of this article as a reference to the prohibition of discrimination on the basis of equality between men and women only".

Malaysia acceded to the CRC in 1995 with a general reservation to Articles 1, 2, 7, 13, 14, 15, 22, 28, 37, 40(3) & (4), 44 and 45, declaring that "said provisions shall be applicable only if they are in conformity with the Constitution, national laws and national policies of the Government of Malaysia." (The articles mentioned relate to majority, measures to eliminate discrimination against children, birth registration and nationality rights, children’s freedom of expression, religion, and association, adoption, right to education, children’s rights and liberties in criminal law, the system of reporting to the CRC and co-operation with UNICEF.)

Background and Sources:  Hooker, Islamic Law in South-East Asia, Singapore, 1984; Ibrahim, Family Law in Malaysia and Singapore, Singapore, 1984; Kamali, "Islamic Law in Malaysia: Issues and Developments," Yearbook of Islamic and Middle Eastern Law, vol. 4 (1998): 158-179; Mahmood, “Malaysia” in Statutes of Personal Law in Islamic Countries, 2nd ed. New Delhi, 1995; Redden, ‘Malaysia’ in Modern Legal Systems Cyclopedia, vol. 9, New York, 1990; Selangor, Administration of Islamic Law Enactment 1989 and Islamic Family Law Enactment 1984 (as at 15th September 1991), comp. by Legal Research Board, Kuala Lumpur, 1992; Siraj, Women and the Law: Significant Developments in Malaysia," Law and Society Review, vol. 28, no. 3 (1994): 561-581.