Conversion and the family
By PROFESSOR DATUK DR ZALEHA KAMARUDDIN
Tuesday September 8, 2009
Various legal hurdles still stand in the way of a dissolution of the marriage and custody of the children where only one spouse embraces Islam.
AS DIFFERENT family laws apply to different communities within the same national legal system, by right, there should be minimal inter-relationship. However, on the few occasions that they intersect, there is much confusion and tension is created.
Family law in Malaysia now consists of Islamic law for all Muslims — contained in state legislation comprising administrative provisions and the substantive law based on the Quran 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 a state entity, and the civil court, a Federal entity, for non-Muslim families. The Syariah court is prohibited by the Federal Consti tution 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, . So upon conversion, the marriage becomes invalid after a fixed period; the Act requires that it be formally dissolved.
Second, (Sec. 51) and an imperative one at that; the two-year minimum period of marriage that must lapse before a petition may be presented is dispensed with [Sec. 51 (3)].
Third, the converting spouse is not allowed to petition for divorce; he or she may appear in the civil court only in response to the proceedings initiated by the non-Muslim spouse [Sec. 51 (1) of the Act].
Fourth, if the non-Muslim spouse does not petition for divorce, is he or she entitled to the estate of the Muslim spouse, and what are the rights of the Muslim who has married the converting spouse?
Fifth, which law is to apply, the Act or Syariah, to the dissolution of the marriage and the custody of the children?
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.
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.
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.
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 Com mission 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 this 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 the 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.
Since 2007, the Attorney-General has organised a 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 also to think in terms of what was and fair and acceptable to both sides.
And Muslim representatives ex hausted 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, not only taking into account that the Sultans are heads of religion in their respective states but also that observing Islamic law and teachings in all aspects of life is the main Islamic duty of all Muslims, as encompassed in the concept of tauhid.
It is expected that the earlier provisions having been accepted by both sides (without any further interventions from unseen hands), will be an interesting instance of harmon isation of Malaysian civil law and Islamic law, and will be a truly Malaysian contribution to the resolution of conflict of laws within a national legal system.