HJH FARIDAH ERYANI PAIRIN
Introduction
Development
and Scope of Muslim Law in
The Singapore
Constitution recognises the special needs of racial and religious minorities.[1] Pursuant to Article 153 of the Constitution,
Parliament enacted the Administration of Muslim Law Act.
2. The Administration of Muslim Law Act,
Cap 3 (“AMLA”), which came into force in 1968, provides the framework for
regulating Muslim religious affairs, including
the establishment of key Muslim institutions, such as :
·
the
Majlis Ugama Islam Singapura (MUIS) to administer matters relating to the Muslim
religion, Muslims and Muslim affairs in
·
the
Registry of Muslim Marriages (ROMM) to register and regulate Muslim marriages;
and
·
the
3. The AMLA also provides for the
constitution of the Appeal Board to hear appeals from both ROMM and
4. This
paper seeks to share and provide a general overview of the practice of Muslim law in
THE
PRACTICE OF MUSLIM FAMILY LAW IN
REGISTRY
OF MUSLIM MARRIAGES (ROMM)
5. The ROMM has the sole jurisdiction to
register marriages where both parties are Muslims. This means that the
secular-based Registry of Marriages (ROM) does not possess jurisdiction to
register marriages between two Muslims. Conversely, the ROMM has no
jurisdiction to register any marriage between a Muslim and a non-Muslim. The
relevant statute which governs such a case would be the Women’s Charter (Cap
353).
THE
Purview
of the
6. The Syariah Court’s jurisdiction is
spelt out in Section 35(2) of the AMLA. The Court hears and determines actions
and proceedings in which these 2 conditions are met:
(1)
where
all the parties are Muslims or where the parties were married under
the provisions of the Muslim law, and
(2)
the
dispute must relate either to –
a) marriage,
b) divorces known in the Muslim law as fasakh, cerai
taklik, khuluk and talak,
c) betrothal, nullity of marriage or judicial separation,
d) the disposition or division of property on divorce or
nullification of marriage, or
e) the payment of emas kahwin, marriage expenses
(hantaran belanja), maintenance and consolatory gifts or mutaah.
7. In Singapore, the exclusive jurisdiction
of the Syariah Court is indirectly conferred under Section 17A(1) of the
Supreme Court of Judicature Act (Cap. 322) which states that “ ... the High Court shall have no jurisdiction to
hear and try any civil proceedings involving matters which come within the
jurisdiction of the Syariah Court under section 35 (2) (a), (b) or (c) of the
Administration of Muslim Law Act (Cap. 3) in which all the parties are Muslims
or where the parties were married under the provisions of the Muslim law.”
Coram
8. Presently, cases at the
9. In 1999, the AMLA was amended to
include a provision for the creation of the post of Registrar of the
Jurisdiction
10. The Syariah Court possesses jurisdiction
where parties were either married under the provisions of Muslim law or where
both parties are Muslims, regardless of the location of the marriage. Where a
marriage had been registered in a foreign jurisdiction and a divorce is contemplated
for such marriage, the Plaintiff has to satisfy the Court that the said
marriage is valid according to Muslim law. There is no requirement in the AMLA
for the registration in
The
Syariah Court Process : General Overview
Cases at the
Registration à Counselling à Issuance of Summons
11. The entire process in the
12. Parties must go through this process before
they are allowed to file a Summons to commence divorce proceedings. Lawyers are
not involved at this stage.
13. The
counselling process is designed to help parties resolve their marital problems
and provides a platform for them to discuss marital issues amicably and
increase the possibility of reconciliation. The purpose is to make them realise
the seriousness of their problems and the subsequent impact and implications of
divorce. This mandatory counselling have proven to be very effective and
successful and a large number of the cases which have undergone counselling
resulted in a reconciliation between the parties or a ruju’ (if talak has been
uttered). The Counsellor will
try to help them find a solution to their problems. If these issues can be
resolved, then the case will be closed at this stage or referred to other
organizations for assistance or further advice. This is to ensure that follow-up
action is taken. About 42% of the cases did not proceed with divorce after
attending Counselling.
14. However, if one or both parties decide to
go through with the divorce after these counselling sessions, the case is then
transferred to the
Mediation
15. Mediation is also another mandatory step
in the
16. Mediation is one of several methods of
dispute resolution used by the
17. The Mediator is a court officer who will
try to help the couple reach an amicable settlement on all issues where
possible. In the past, efforts to resolve disputes were handled by court
assistants, parties’ lawyers and sometimes the President himself. With the
amendments to AMLA in 1999, mediation (sulh)
is now done by 3 full-time Mediators appointed specially for this purpose.
18. If an
agreement is reached between the parties, the Mediator will prepare a consent order,
whereupon both parties will appear before the President for a consent order to
be recorded. The process ends there. Mediation has proven to be largely
successful in the
Pre-Trial
Conference
19. If no settlement can be reached at this
Mediation stage, the case will be transferred to the Pre-Trial Conference (PTC)
stage. The PTC is conducted by the Registrar of the
20. At this stage, the Registrar would give directions as to the timelines to be followed
with respect to discovery of documents, filing of affidavits in preparation for
the trial and the proposed hearing dates. Some cases do get
settled before the Registrar during the PTC stage.
Trial Stage
21. Having been through the Mediation and the
PTC stages without any settlement, the case now goes to trial. At the trial,
the Court will hear all claims relating to the issues over which no settlement
could be reached at the earlier stages. These are:
·
Divorce
·
Nafkah Iddah
·
Mutaah
·
Custody of children
and access
·
Matrimonial
property
22. The trial is conducted by the President.
The Court will hear testimony and receive evidence. Evidence
to be given in support of any claim is primarily by affidavit [2]. This is to cut down on
Court’s time in recording evidence and to reduce the element of surprise. This
is also consistent with the philosophy of an open, transparent approach geared
towards amicable resolution of disputes.
23. A
party may cross-examine the other party and his witnesses on their affidavits.
In appropriate cases, the Registrar or the Court may direct parties to file
affidavits-in-reply and dispense with cross-examination[3].
Hakam Stage
(Appointment of Hakam)
24. Where there is no breach of taklik
conditions, husband does not agree to a divorce or parties agree to arbitrate,
25. The role of a hakam is to effect a
reconciliation between the parties and to report the result of their
arbitration to the Court.
26. Lawyers are not allowed to participate in
the hakam arbitration.
Ancillary
Issues
Orders on Custody/Access & Division of Assets
27. The Syariah Court’s powers to make orders
on custody of and access to children are only ancillary in nature and therefore
may only be exercised when its jurisdiction has been invoked via an application
for divorce. Thus, where no such proceedings are currently pending in the
28. Similarly, the
Codification of the Principles on Disposition or Division of Matrimonial
Property
29. In making any order for the disposition
or division of property on divorce or nullification of marriage, the Court
shall have regard to all the circumstances of the case, including the factors
as set out in Section 52(8) of the AMLA:
(a)
the
extent of the contributions made by each party in money, property or work
towards acquiring, improving or maintaining the property;
(b)
any
debt owing or obligation incurred or undertaken by either party for their joint
benefit or for the benefit of any child of the marriage;
(c)
the
needs of the children, if any, of the marriage;
(d)
the
extent of the contributions made by each party to the welfare of the family,
including looking after the home or caring for the family or any aged or infirm
relative or dependant of either party;
(e)
any
agreement between the parties with respect to the ownership and division of the
property made in contemplation of divorce;
(f)
any
period of rent-free occupation or other benefit enjoyed by one party in the
matrimonial home to the exclusion of the other party;
(g)
the
giving of assistance or support by one party to the other party (whether or not
of a material kind), including the giving of assistance or support which aids
the other party in the carrying on of his or her occupation or business;
(h)
the
income, earning capacity, property and other financial resources which each of
the parties has or is likely to have in the foreseeable future;
(i)
the
financial needs, obligations and responsibilities which each of the parties has
or is likely to have in the foreseeable future;
(j)
the
standard of living enjoyed by the family before the breakdown of the marriage;
(k)
the
age of each party and the duration of the marriage;
(l)
any
physical or mental disability of either of the parties; and
(m) the value to
either of the parties of any benefit (such as a pension) which, by reason of
the dissolution or annulment of the marriage, that party will lose the chance
of acquiring.
30. In addition to the above factors
enumerated in Section 52(8), the
Consideration in custody and access orders
31. The
AMLA does not give specific guidelines on who should get custody of the
children. In deciding this matter, the Court will look into the whole
circumstances of the case. As a general principle, the paramount consideration
is the welfare of the children and their best interest. The other parent would
then be awarded rights of access.
32. Of late, joint custody orders are the
norm in the
Enforcement
of Syariah Court Orders
33. The
Syariah Court also supported the recommendation by the Singapore Law Society’s Muslim
Law Practice Committee (MLPC) with regard to how the enforcement procedure for
34. A Syariah Court Order is deemed and
treated to be an order issued by the District Court (civil courts) for
enforcement purposes [5].
This means that all the relevant powers of enforcement possessed by the
District Courts and the related machinery shall be available to the aggrieved
party. However, if any variations to the original Syariah Court order is
required, the requisite application has to be made at source, ie. at the
Syariah Court, as opposed to the District Courts, as the latter is not
conferred with the power to go into the merits of the same.
Execution of Deed or Endorsement of Documents
35. Where a party neglects, refuses or fails
to comply with a Syariah Court Order that requires him to execute certain
documents (such as a transfer of ownership in a property or sale of property),
the other party may apply to the Syariah Court for either the Registrar or the
President of the Court to execute the requisite documents on the defaulting
party’s behalf under Section 53A of
AMLA.
36. The signature thereof by the Registrar or
the President of the Court has the same effect as the signing by the party
ordered to sign. This is the only form of enforcement done at the
Penal Sanctions
37. A party aggrieved by the other party’s
breach of a
38. In practice, however, before any party
resort to this option, they will need to go through mediation at the Family
Court (civil courts). Rather than resorting to penal sanctions to resolve their
differences, parties are encouraged to settle their disputes amicably. One
common example where one party makes such application for penal sanction is
where the other party refuses to allow the complainant to have access to the
children.
39. Orders for mutaah and iddah may also be
enforced in the Family Court using the enforcement mechanism available for the
conventional maintenance orders for children and wives issued by the Family
Court. However, the mode of payment of mutaah and iddah must be in the form of
monthly instalments before it can be enforced in the Family Court. Hence, if
the original order is for payment in a lump sum, an application must firstly be
made to the
Alternative Jurisdiction For Custody and Access and/or
Division of Matrimonial Assets in Civil Courts
40. With the amendments to AMLA in 1999,
certain provisions were amended and new provisions were inserted to provide for
the concurrent jurisdiction between these two courts. Under the new Section 35A of AMLA (with the
corresponding new Section 17A(2) of the Supreme Court of Judicature Act), the
Singapore Family Court can hear or continue to
hear the matters of parties to a Muslim marriage involving disposition or
division of matrimonial property or custody of
children:
(a) if
both parties consent to the matter being heard by the Family Court, or
(b) when
the
Other Applications at Family Court
41. In the case of maintenance applications
in the Family Court, there is no need for mutual consent. The wife may apply to
the Family Court for maintenance for herself during marriage and her children
regardless whether there is a divorce application or not in the
42. Similarly, parties to the marriage and/or
the children may also apply to the Family Court for Personal Protection Orders
or Domestic Exclusion Orders in cases of family violence as laws governing
these matters are of general application and not matters of personal laws.
THE
APPEAL BOARD
43. The legal system set out under the AMLA
does provide aggrieved parties with an avenue to appeal. Under Sections 55 and
105 of the AMLA, decisions of the
44. The Appeal Board is a body constituting
of 3 members drawn from a panel of persons appointed by the President of
Singapore. The panel consists of Muslim scholars, District Judges, senior
lawyers and senior Legal Officers. Prior to 2008, the members of the Appeal
Board were all men. However, for the first time in
45. On any appeal, the Appeal Board may
confirm, reverse or vary the decision of the
46. The decision of the Appeal Board is final
and conclusive and cannot be challenged, appealed against, reviewed, quashed or
called into question in any court and shall not be subject to certiorari,
prohibition, mandamus or injunction in any court [8].
47. MUIS
provides administrative and secretariat support to the Appeal Board as Appeal
Board hearings are carried out in MUIS’ building.
Use
of Information Technology (IT) Facilities at
48. In keeping with the times and in
harnessing the advantages of Information Technology (IT), the
49. Users can read about the processes in the
50. There is even an online Trial Calculator for
purposes of inheritance computation under faraid, which gives instant results.
This is the world’s first! Trial calculations are
provided solely for the information of users, to enable them to work out the
division of estates of both deceased and living persons. Although users may
make copies of the calculations, this calculation is for information only and no
individual, authority or court of law is obliged to recognise the calculations
done through this calculator. A proper Inheritance Certificate issued by the
51. In the Court itself, the
52. The Court also uses the Justice On-Line
(JOL) System to conduct Pre-Trial Conferences (PTC). Justice On-line is an
innovative and unique communication platform for the court and the legal
industry. It facilitates new ways of working, collaboration & service
delivery through the provision of cutting-edge synchronous digital
and mobile communications tools, such as video conferencing, 3G and online
document collaboration. This platform links
up the Registrar of the
53. In the management of
walk-in public enquiries and fixed appointments for court cases, the Queue
Management System is in place to ensure a reasonable waiting period for the
public to be attended to. In empowering parties to make payments for court
related transactions,
54. With the use of IT in their daily operations and the Technology
Court, the Syariah Court is better equipped to settle divorce cases and the ancillary
issues in a more expedient and effective manner.
The
practice in the Singapore Syariah Court & Appeal Board
55. Under
Section 39 of AMLA, parties to the dispute must appear in person or be
represented by an “advocate and solicitor”.
56. By and large, purely Muslim matters that
relate to the nature of the divorce, the right to iddah and mutaah, and
polygamy are usually not in dispute in the cases that go before the
57. In any event, the Presidents of the
Syariah Court who are the judges deciding these cases will ensure that Syariah
principles are accordingly applied.
58. With regards to the constitution of the 3
members of the Appeal Board to hear an appeal, the practice is to appoint 2
members with a Syariah law background to hear cases where Syariah issues are to
be determined. Where the issues are not purely religious in nature, the
practice is to appoint at least one member who is civil law trained, ie. a
District Judge (or retired Judge), a practising lawyer or a senior Legal
Officer to sit on the Appeal Board to hear the appeal. Even if the issues on
appeal are purely ancillary matters, at least one member of the Appeal Board will
have a Syariah law background.
59. The present arrangement works for
Conclusion
60. Singaporean Muslims live in an open, globalised,
and urban society which is multi-racial and multi-religious. Even though they
comprise only 15% of the population, they have state institutions and national
policies that cater specifically for their needs. This paper has shown a
glimpse of how they have actively contributed to and benefitted from
61. Looking ahead, key Muslim institutions
like MUIS, the
62. As the world moves rapidly, new
challenges will emerge. While this is not an easy task, Singaporean Muslims
will surmount such challenges by reflecting their options rationally, achieving
consensus and then working together in the spirit of gotong royong to do
their best for the good of tomorrow.
[1] Article 152
of the
[2] Refer to Section 43(a) of AMLA and Rule 24(1) of Muslim Marriage
& Divorce Rules (MMDR)
[3] Rule 24(3) of MMDR
[4] See Madiah Bte Atan v Samsudin Bin Budin [1998] 2 SLR 679
[5] S. 53 of AMLA
[6] S. 52(13) of AMLA
[7] S. 55(5) of AMLA
[8] S. 56A of AMLA
[9] See section 39 of the
Administration of Muslim Law Act (AMLA) and Rule 37(1) of the Muslim Marriage and Divorce Rules.
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