The development of Muslim Family Law in Malaysia

Malacca Sultanate Colonial Era (British) After Independence

Before Colonial Period Hukum Kanun Melaka: Article 25 to 28 Hukum Kanun Pahang: Article 67 Undang-undang Kedah 1311H: Article 16 Content: Translated version of summarised principles of Syafi’I school of thought on marriage and divorce. E.g.

Content Wali Wali’s List of priority Conditions for Ijab and Qabul Witnesses and its numbers Khiyar in marriage Divorce by talaq Iddah period

British Colonial Period Straits settlement: Muhammedan Marriage Ordinance 1880 Federated Malay States: Perak Registration of Muhammedan Marriage and Divorce Enactment 1885 Unfederated Malay States: Undang-undang Orang Hendak Bercerai Laki Bini dan lain-lainnya 1909 (Kelantan) An Enactment to Provide for the Registration of Marriage and Divorce of Muhammedan 1911 Moslem Marriage and Divorce Enactment 1911

Content Registration of marriage, divorce and rujuk The appointment of registrar The duty to register marriage, divorce and rujuk Penalty for disobeying the rules Breach of promise to marry Right of a wife for fasakh and ta’liq divorce

Differences Name of the statutes Amount of penalty Procedure for the appointment of registrar and kadi Their duty

Pre and Post Independence (50’s to 70’s) Enakmen Pentadbiran Undang-undang Islam 1952 (Selangor)(Section 119 to 142) Enakmen Pentadbiran Agama Islam 1978 (Johor)(Section 111 – 137) Enakmen Undang-undang Pentadbiran Agama 1962 (Kedah)(Section 114 – 138) Enactment no. 1 of 1959 administration of Muslim law (Malacca) (section 113 – 136)

Content The appointment of jurunikah and registrar for marriage, divorce and Rujuk. Bethrothal Power to solemnize marriage Venue of marriage Permission to marry Registration of marriage Dowry and gifts Types of Divorce Alimony for dependents Hadhanah (child custody) Nikah gantung and matrimonial property (Johor s112) Muta’ah (Selangor s130)

The development in 80’s Jawatankuasa Teknikal Undang-undang Syarak dan Sivil (Technical Committee for Syarak and civil law) established to steer the development of Islamic law in the states. Separate the provisions of Islamic Family in the existing Enactment. Enacted Islamic Family law. Reasons; more space to elaborate the technicalities and details in family law.

Other reasons: to lessen different of interpretations among registrars for marriage, divorce and rujuk; syarie judges; and states. Some states adopted legal provision from other Muslim countries e.g Pakistan Enakmen Keluarga Islam Kelantan 1983 Enakmen Undang-undang Keluarga Islam 1983 (Melaka)

Enakmen Undang-undang Keluarga Islam (Negeri Sembilan) 1983. Enakmen Undang-undang Keluarga Islam 1984 (Selangor) Enakmen Undang-undang Keluarga Islam 1984 (Perak)

Content All the previous legal provisions had been restructured to be easily refered. Marriage Registration of Marriage Penalties related solemnization and record of marriage Dissolution of marriage Alimony/Maintenance for wife and children Hadahanah/child custody Recognition of the marriage outside the country Legitimacy of children Other Penalties.

All the provision are more detail compare to the previous one.

ENACTMENT NO. 5 OF 1956 ADMINISTRATION OF THE LAW OF THE RELIGION OF ISLAM ENACTMENT 1956 Section 118. Authority to solemnize marriages. (1) A marriage may be solemnized by any person holding a letter of appointment from the Ruler authorizing him to solemnize marriages according to the Law of the Religion of Islam. (2) A marriage may be solemnized by any other person permitted under the Law of the Religion of Islam to solemnize such marriage, provided that notice of the intended solemnization is given to a Registrar previous thereto. (3) No person shall solemnize any marriage save in pursuance of sub-section (1) or (2) of this section.

ENACTMENT NO. 8 OF 1982 THE ADMINISTRATION OF THE RELIGION OF ISLAM AND THE MALAY CUSTOM OF PAHANG ENACTMENT 1982 Section 59. Authority to solemnise. (1) A marriage may only be solemnised according to Hukum Syara' by the Juru Nikah or Wali Hakim in their respective area of Jurisdiction or it may also be solemnised by a Wali or his agent provided that he has obtained the consent of the Registrar of that area. (2) A Juru Nikah may solemnise a marriage at the request of the Wali of the woman to be wedded but before solemnising such marriage he shall make full enquiry in order to satisfy himself that there is no lawful objection according to Hukum Syara' to the marriage and he shall not perform the ceremony until he is so satisfied. For the purpose of such enquiry he may require any Muslim to appear before him to give oral or documentary evidence. (3) If the woman to be wedded shall have no wali or a wali refuses to give his consent to the marriage without sufficient cause, the marriage may be solemnised by a Juru Nikah for the area in which the woman to be wedded normally resides but before solemnising the marriage, the Juru Nikah shall conduct an enquiry in accordance with subsection (2) provided that in the case where a wali refuses to give his consent, the marriage may only be so1emnised if the woman is sixteen years of age or more.

Other changes: All divorce process must go through Syariah court proceeding. Old law: Registrar of Marriage, Divorce and Rujuk. Application for Polygamy has be stricted where written court permission is required. Old law: Kadi’s permission. Notice of polygamy must be send to wife once the application is made. Except for Kelantan. Problems; ununiformed, development depends on state, gender bias, injustice to wife and children, inconsistence with Islamic teaching.

After 2002 Toward the uniformity of the Islamic law in Malaysia In 1st August 1997 Council of Rulers agreed to the idea to coordinate and uniform the Islamic Family law in Malaysia. In 22 Mac 2001, Council of Rulers consented and endorsed the uniformity of the law based on the model of the following bills: The Administration of Islamic Law bill The Islamic Family Law bill The Islamic Evidence Law bill The Islamic Civil Procedure bill The Islamic criminal Procedure bill