Child support defaults leave mothers burdened

KUALA LUMPUR - The issue of child maintenance after divorce continues to weigh heavily on Malaysia’s Muslim community, with persistent reports of fathers failing to fulfil responsibilities clearly mandated by both religion and law.

Beyond financial provision, child maintenance encompasses welfare, education and emotional well-being; areas most affected when parents part ways. Yet for many mothers, the struggle to secure their children’s rightful support has become a long and exhausting battle.

Public attention was previously drawn to the case of a woman known as Nurin Alisa, whose actions went viral after she confronted her former husband at his wedding solemnisation ceremony in a mosque last year.

She said her drastic step was driven by desperation, an attempt to claim maintenance for her two daughters after alleging that her former husband repeatedly failed to cooperate with court proceedings.

The incident not only ignited heated debate on social media but also reopened wider discussions on the effectiveness of legal enforcement and the role of the Syariah courts in ensuring child maintenance obligations are met.

It raised pressing questions about whether the existing legal framework sufficiently protects children’s rights and holds negligent fathers accountable.

AN OBLIGATION THAT ENDURES

Sharing her views, senior lecturer at the Faculty of Syariah and Law, Universiti Islam Selangor, Dr Azizah Mohd Rapini said that child maintenance, whether during marriage or after divorce, is an obligation prescribed by Islam and emphasised in the Quran.

"This obligation is clearly stated in the Quran, particularly in Surah Al-Baqarah, verse 233, which affirms that the father is responsible for providing maintenance for his child.

"The father’s role as outlined in this verse is comprehensive, encompassing various aspects of a child’s life, including the provision of food, clothing and education. None of these responsibilities may be neglected," she said.

From the perspective of Islamic law in Malaysia, divorce does not sever a father’s obligation towards his child, which must be borne until the child reaches the age of 18. A court order may also be extended beyond that age if the child is still pursuing education or has a disability.

This responsibility includes the provision of shelter, food, clothing and education.

Azizah noted a common misconception among some fathers that their responsibilities diminish after divorce, when in fact they remain unchanged.

"The public must understand that child maintenance cannot change simply because of changes in a father’s personal life. For example, if a father remarries and starts a new family, the increase in his dependants cannot be used as a reason to reduce maintenance for children from a previous marriage.

"Such situations often affect a child’s well-being. For instance, if before a divorce a father provided RM2,000 per month for a child, covering education, clothing and daily necessities... that amount should not be reduced after he forms a new family," she said.

Any reduction in maintenance would affect the facilities and level of comfort previously enjoyed by the child.

Instead, she said, child maintenance should be increased in line with the child’s growing age, from infancy to childhood and subsequently adolescence, in accordance with changing and increasing needs over time.

She added that it should also be adjusted to reflect current circumstances, including rising living costs and healthcare expenses.

"When a child falls ill and requires medical treatment, that responsibility remains with the father. In fact, this obligation is not affected even if the mother is employed or earns a higher income.

"In addition, the Muslim community must also understand that when a child has no father; whether due to death, disappearance or incapacity to work because of illness; the responsibility for maintenance shifts to the male relatives on the father’s side, according to their respective means, such as the paternal grandfather, the father’s brothers or paternal male relatives," she said.

AMOUNT CLAIMED

Meanwhile, lawyer Siti Hajar Aisyah Mohd Pozi said Syariah law in the country falls under the jurisdiction of state governments, with each state having its own enactment or legislation to administer matters related to its respective Syariah courts.

She said although there are differences in specific provisions, the substance of Syariah laws across the states is generally similar, including provisions on a father’s obligation to provide maintenance for his children.

"For example, in the Federal Territories, the administration of Islamic affairs, including marriage, divorce, inheritance and property administration, is governed under the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505).

"In principle, Syariah law clearly places the responsibility for child maintenance on the father. A father is obligated to provide basic necessities such as food, clothing, shelter, education and medical care according to his means. If the father is unable to do so, the responsibility may shift to the male relatives on the father’s side in accordance with the order of guardianship," she said.

Siti Hajar added, however, that in determining the amount of maintenance, the Syariah Court tends to adopt a wasatiyyah (balanced) approach by examining the facts of each case, including the father’s income, the amount claimed by the mother, and the actual needs of the children.

The amount of maintenance ordered is also not fixed, as it depends on the circumstances of each case. In some instances, the court firmly maintains the amount claimed by the former wife if it is deemed reasonable, thereby requiring the father to seek additional sources of income to comply with the order.

"For example, if a mother claims RM3,000 per month and the court is satisfied that the amount is justified, such an order will be issued even if the father has to find additional sources of income to meet the obligation.

"However, there are also situations where the court adopts a middle-ground approach. If a claim is considered too high in relation to the father’s income and other financial commitments, the court may approve only an amount sufficient to cover the child’s basic needs. While this approach is seen as more practical, it may at times give rise to a sense of injustice for mothers who are forced to bear the remaining expenses," she said.

WHEN CLAIMS ARE HARD TO PROVE

Elaborating further, Siti Hajar explained that one of the main challenges faced by mothers in child maintenance claims is proving the father’s true financial capacity.

She said the absence of supporting documents also makes it difficult to substantiate a mother’s claim, especially when the father is not transparent in disclosing his income and expenses.

"In most situations, fathers will file objections to the amount claimed on the grounds of inability to pay, while mothers face difficulties in obtaining evidence such as salary slips, business profit records or other financial information.

"The situation becomes even more complicated when the father is unemployed. In such cases, Syariah Court judges do not have the authority to compel a person to seek employment. The court can only issue an order based on a reasonable minimum amount in accordance with the child’s basic needs," she said.

She said that if the father or guardian is unable to provide, the mother is forced to shoulder the full responsibility of supporting the children. (In this situation, the father and guardian are absolved of the obligation to provide maintenance for the children.)

However, under all circumstances, the primary objective of the Syariah legal system is to ensure that the welfare of the child is safeguarded without causing injustice to any party.

"In reality, the issue of child maintenance is not merely a matter of figures or legal provisions. It involves questions of responsibility, honesty, financial capability, and the child’s welfare, which should always take precedence.

"As long as there are information gaps, a lack of financial transparency, and insufficient awareness of true responsibilities, the issue of child maintenance will continue to pose a challenge that demands serious attention from all parties, not only the courts, but society as a whole," she added.

LENIENT PENALTIES

Meanwhile, Siti Hajar said when a father fails to comply with a maintenance order that has been issued, the act is regarded as disobedience to a court order or a form of contempt of court.

Such circumstances may result in the father being subjected to committal proceedings or imprisonment.

However, to obtain a committal order, the mother must file a fresh application, which requires her to bear legal fees and other additional expenses.

"The mother has to wait for a relatively long period for the process to be completed. After the committal order is obtained, the prison sentence imposed is usually short; sometimes only a few days and at most up to six months.

"If, after serving a committal sentence (imprisonment), the father continues to default, the mother is forced to submit repeated committal applications until the father complies with the order and pays the maintenance claimed," she said.

This situation also compels mothers to go through the same court process repeatedly, in addition to sacrificing time and energy and bearing increasing legal costs.

Nevertheless, apart from committal orders, fathers who default on child maintenance payments may also face other legal actions, namely hiwalah (garnishee) orders as well as seizure and sale of assets.

Hiwalah is used to freeze and transfer funds from a former husband’s bank account to the former wife to settle outstanding child maintenance arrears.

A hiwalah order refers to an application to freeze the bank account of the debtor. However, in current practice, commercial banks in Malaysia do not carry out account freezes based solely on a Syariah Court order.

"Instead, account freezes usually require an application through the civil courts. This process is not only complex but also takes a long time before it can be enforced.

"In addition, seizure and sale of assets also constitute a new application process that must be initiated by the mother. In many cases, such seizures are unsuccessful because the father has already disposed of his assets or gives various excuses to evade enforcement," she added.

Last year, the government, through the Family Support Division (Bahagian Sokongan Keluarga, BSK) of the Department of Syariah Judiciary Malaysia (JKSM), in collaboration with Bank Negara Malaysia (BNM), announced that it was intensifying efforts to formulate a mechanism to seize bank accounts of former husbands who fail or default on maintenance payments.

The initiative involves strengthening the enforcement of Syariah Court orders to ensure that enforcement actions can be carried out more effectively, thereby safeguarding the maintenance rights of children and wives.

Previously, a total of 4,715 cases involving breaches of maintenance orders by defaulting husbands or fathers were recorded by the Syariah courts for the period from 2021 to 2024.

In 2021, 1,571 cases were registered, with 872 cases successfully resolved. In 2022, 1,600 cases were recorded, of which 1,096 cases were resolved.

For 2023, a total of 1,844 cases were registered, with 1,102 cases successfully resolved. Meanwhile, from January to November 2024, 1,076 cases were resolved out of 1,865 cases registered.

THE CALL FOR REFORM

Meanwhile, Siti Hajar also acknowledged that the enforcement of child maintenance orders in the country continues to face various challenges, partly due to the lack of uniformity in Syariah legal jurisdiction.

This situation has resulted in differences in implementation between states, in turn creating confusion among the public.

The issue is further compounded by weak enforcement against fathers who fail to comply with Syariah Court orders, despite the existence of relevant legal provisions.

"In the eyes of the public, the enforcement of child maintenance orders is often seen as weak and ineffective. The overly complex and multi-layered processes force mothers seeking maintenance to bear heavy financial, time and emotional burdens.

"Eventually, some of them give up and choose not to pursue their claims due to the lengthy, repetitive legal proceedings and the possibility of ending without a satisfactory resolution," she said.

In this regard, she said that Syariah laws, particularly those related to child maintenance, need to be standardised to streamline legal processes and eliminate overlapping jurisdiction between the Syariah and civil courts, while ensuring that existing laws are uniformly adopted across all states.

Once Syariah laws are harmonised, penalties can be enforced more effectively and decisively, thereby strengthening the standing of Islamic law in the country.

The application and claim management system should also be improved so that cases do not take years to be resolved, thereby ensuring that the rights of children and mothers continue to be protected.

At the same time, the Syariah Court judicial system needs to be reassessed in terms of administrative efficiency, as applicants currently have to open separate files for each claim, such as maintenance, hadanah (custody), mutaah, and matrimonial property.

This situation not only increases legal costs but also prolongs the time required to resolve a case.

"Legal practitioners themselves acknowledge that there are shortcomings in the existing system, which is seen as slow, complex and burdensome. However, reform is not an easy undertaking, as it requires comprehensive study and appropriate mechanisms to address these weaknesses.

"Such efforts are crucial to ensure that the Syariah Court institution continues to be strengthened and trusted by the public, and is not perceived as a system that burdens or marginalises women, particularly single mothers. Comprehensive reform has the potential to enhance fairness, efficiency and public confidence in the Syariah judicial system in the future," she added. - BERNAMA