Dissolution of marriage in Islamic and civil laws

10 Apr 2022 07:36am
Datuk Zainul Rijal Abu Bakar
Datuk Zainul Rijal Abu Bakar

The Islamic Family Law enacted and approved in all the states in Malaysia is a law that aims at consolidating the provisions in respect of marriage, alimony, custody as well as other matters connected with family.

This law applies to Muslims residing in a state.

The Law Reform (Marriage and Divorce) Act (LRA) 1976 is an Act to provide for monogamous marriages, solemnisation and registration of such marriages and to consolidate the law relating to divorce.

This, however only applies to non-Muslims under certain conditions.

It could not be applied to Muslims or those who tied the knot in accordance with the Islamic law.

Solemnisation of such (civil) marriages is not permitted if one party to a marriage is a Muslim.

Although the two sets of laws revolve around family and the family institution relationship, there are big differences between them.

Among the differences were that under civil marriages, an illegitimate and an adopted child are granted the rights of legitimate children.

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On the other hand, the Islamic law emphasises lineage and only recognises that a child is legitimate if they were born six months (after a solemnisation or marriage).

Under the law, an adopted child, is not granted the rights of a legitimate child.

Section 50 of LRA provides that a petition for a divorce for non-Muslims may only be submitted within the first two years of a marriage, unless the petitioner shows that there were exceptional circumstances or they have suffered hardship or for the children's interests.

However, under the Islamic law, the husband and wife could file a divorce petition at any time after the marriage.

Under Section 53 of Act, the petitioner must state the grounds of their divorce petition and all such divorces require that a marriage has irretrievably broken down.

The court could conduct investigation that the marriage is broken down and the party submitting the petition must provide the evidence.

There is no such condition needed to dissolve a marriage through divorce under the Islamic law.

However, if the husband misused the pronouncement of talaq (divorce), he must pay mutaah (a consolatory gift to a wife when she is divorced for no valid reason).

In claiming for matrimonial property, the party must prove their contribution in terms of money, assets or work acquired during the subsistence of the marriage.

The debts of the party and the needs of the children should also be taken into account in the division of assets in a civil court.

For Muslim women, whether she is not working and does not contribute (financially) in the marriage, she is entitled to receive one-third (of the division of assets) upon dissolution of marriage.

The enforcement alimony order (under the Act) to a wife will be valid until the husband or the wife's death or if the wife remarries or lives in adultery with another person.

In Islam, the husband must provide alimony to his wife for three consecutive months (waiting period) after divorcing her only if she is not pregnant.

If the wife is pregnant, alimony should be provided to her throughout the gestational period.

In a nutshell, Islamic Family Law is more flexible, but emphasises family institution.

Datuk Zainul Rijal Abu Bakar is Malaysia Muslim Lawyers' Association (PPMM) president

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