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Selasa, 10 Mei 2022

THE PRACTICE OF MUSLIM FAMILY LAW : THE SINGAPORE EXPERIENCE

 

HJH FARIDAH ERYANI PAIRIN

 

Introduction

 

Development and Scope of Muslim Law in Singapore

 

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 Singapore;

·         the Registry of Muslim Marriages (ROMM) to register and regulate Muslim marriages; and

·         the Syariah Court to deal with, inter alia, Muslim divorces and ancillary issues arising therefrom, including issuing Inheritance Certificates for estates of deceased Muslims.

3.         The AMLA also provides for the constitution of the Appeal Board to hear appeals from both ROMM and Syariah Court.

4.         This paper seeks to share and provide a general overview of the practice of Muslim  law in Singapore by legal practitioners, in particular, the practice of Muslim family law.

 

 

 

 

THE PRACTICE OF MUSLIM FAMILY LAW IN SINGAPORE

 

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 SYARIAH COURT

 

Purview of the Syariah Court

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 Syariah Court are heard by either the Senior President or a President. In order to facilitate the disposal of business in the Court, the AMLA also provides for the appointment of one or more ad-hoc presidents. These ad-hoc Presidents have the same powers and perform the same functions as the President of the Syariah Court.

9.         In 1999, the AMLA was amended to include a provision for the creation of the post of Registrar of the Syariah Court. The Registrar performs almost the same functions as the registrars in the civil courts. The current Registrar, Mdm Animah Bte Abdul Gani, was formerly a senior Legal Service Officer and also the first female Registrar of the Syariah Court in Singapore.

 

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 Singapore of a Muslim marriage contracted and solemnized overseas.

 

 

 

 

The Syariah Court Process : General Overview

Cases at the Syariah Court go through the following stages, as indicated in the following chart:

 

 

Registration à Counselling à Issuance of Summons

 

11.       The entire process in the Syariah Court begins with the submission of a registration form. After registration, parties are referred to Syariah Court’s accredited partners under the Marriage Counselling Programme who will conduct the counselling sessions. These partners are able to provide a more holistic approach in assisting couples in a more conducive environment. Religious inputs will be provided by accredited Asatizah in the course of these sessions.

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 Syariah Court and the divorce may be commenced by way of summons. The party commencing the proceedings (Plaintiff), need to file an Originating Summons endorsed with a Case Statement. Upon service of the said Summons, a date would be set for a mediation session. Parties may involve lawyers at the mediation stage.

 

Mediation

15.       Mediation is also another mandatory step in the Syariah Court’s process. At this stage, divorce and ancillary issues such as custody of children, division of matrimonial property and payment of nafkah iddah and mutaah will be discussed.

16.       Mediation is one of several methods of dispute resolution used by the Syariah Court to reach a peaceful agreement between parties without litigation or hearing (“sulh”). This method of dispute resolution reflects true justice as “sulh” is based on the element of consent of both parties, devoid of hostility, enmity and harsh words.

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 Syariah Court. About  70% of the cases were concluded at this stage.

 

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 Syariah Court.

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, Syariah Court may appoint a hakam.

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 Syariah Court, such as when the disputes arose during the subsistence of the marriage, disputes over custody and access would have to be resolved in the civil courts under the auspices of the Guardianship of Infants Act (Cap 122).

28.       Similarly, the Syariah Court’s powers to make orders on the division of matrimonial assets may only be exercised in divorce proceedings that are before it. Accordingly, in the absence of such proceedings, disputing parties would have to apply to the civil courts for determination under the relevant statutes, such as the Supreme Court of Judicature Act (Cap 322) or the Subordinate Courts Act (Cap 321), depending on the forum in which such matter is heard. In such circumstances, the law applicable would be the common law of property, subject to the equitable doctrines of trusts, where applicable [4].

 

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 Syariah Court takes a holistic view of what is fair and equitable in determining the division or disposition of the matrimonial assets.   

 

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 Syariah Court. This signals strongly that both parents ultimately are still responsible for their child and have to work together to shoulder the responsibility in ensuring their child’s long-term welfare : Zaini Bin Ibrahim v Rafidah binte Abdul Rahman (Appeal Case No. 26 of 2006).

 

 

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 Syariah Court orders could be streamlined further. Previously, Syariah Court orders had to be registered at the District Court before they can be enforced by the District Court. This registration process costs time and money. The MLPC recommended an amendment to AMLA that for purposes of enforcement, Syariah Court orders could be treated as District Court orders. With the amendment in 2008, Syariah Court orders are enforceable at the civil court without the need for registration.

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 Syariah Court. All other enforcement is done at the District Court.

 

Penal Sanctions

 

37.       A party aggrieved by the other party’s breach of a Syariah Court order can initiate a Magistrate’s Complaint in the Subordinate Courts (civil courts). Such an application would entail the possible imposition of penal sanctions :  non-compliance of an Order constitutes an offence for which a defaulter may be liable to imprisonment of  up to 6 months upon conviction [6].

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 Syariah Court to vary the order to provide for monthly payments.

 

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 Syariah Court grants leave if there is no mutual consent.

 

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 Syariah Court.

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 Syariah Court and Kadi or Naib Kadi, can be appealed against in the Appeal Board.

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 Singapore’s history, 3 women were appointed to the Appeal Board in Jan 2008. Their appointment is seen as ensuring that the Appeal Board has the requisite expertise needed from a women’s perspective apart from their contributions with regards to their qualifications and expertise in their own respective fields. The Appeal Board currently has 16 members, 4 of whom are women.

45.       On any appeal, the Appeal Board may confirm, reverse or vary the decision of the Syariah Court, exercise any such powers as the Court could have exercised, make such order as the Court ought to have made or order a retrial, or award costs if it thinks fit [7]. To achieve an equitable result, the Board has a discretion to receive or hear further evidence and, in appropriate situations, to allow for leave to appeal out of time.

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 Syariah Court

 

48.       In keeping with the times and in harnessing the advantages of Information Technology (IT), the Syariah Court employs a progressive approach towards the use of IT. For easy access to information regarding Syariah Court, the divorce process, etc. one just needs to go to the Court’s website at www.syariahcourt.gov.sg. The webpage is very comprehensive, informative and advisory in nature. It is also easy to use and interactive.

49.       Users can read about the processes in the Syariah Court, the issues involved in a divorce, the estimated timelines and also find out answers to frequently-asked-questions. They can also download court forms and apply for Inheritance Certificate online. An Online Guide is also available to explain and assist the users in submitting an online application.

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 Syariah Court is required for official purposes.  

51.       In the Court itself, the Syariah Court uses a fully computerized case management system to facilitate their day-to-day operations for effective management and monitoring of the cases. Cases from the Counselling stage to the various Court stages are systematically tracked. The system also integrates other innovative applications, such as SMS alert reminders to parties for Court appointments. In addition, video conference facilities are available for prisoners and drug inmates. This reduces and even obviates the need for parties who are imprisoned to be brought from the prison/DRC complex to the Syariah Court for each and every stage of the divorce process. In this way, cases can be heard via video-conferencing with the incarcerated party direct from prison/DRC. It is convenient, saves time, costs and minimizes any security risk.

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 Syariah Court with the lawyers via their computers. The Registrar conducts the PTC with the lawyers while the lawyers are in the comfort of their desk in their own office. This is definitely convenient for the lawyers, saves time and costs as lawyers are spared the trip to the courthouse and the waiting time outside the Registrar’s chambers. This web conferencing platform is also used by the Civil Courts, Attorney-General Chambers, Legal Aid Bureau and law practices, on a daily basis in Singapore.

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, Syariah Court has invested in ‘Self Automated Payment Machines’. The mode of payment has gone cashless with only NETS or Cashcard payment being accepted by the Syariah Court.  

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”. Singapore does not have a separate body of legal practitioners (Peguam Syarie). Rather, any advocate and solicitor of the Supreme Court of Singapore who holds a valid Practising Certificant and has been appointed by a party to a Syariah Court proceeding may enter an appearance.[9] There is also no requirement that lawyers practising in the Syariah Court must have Syariah qualification nor is there a requirement that they must be Muslims. So, it is not uncommon to find non-Muslim lawyers in the Syariah Court. However, in practice, many of these lawyers, even the non-Muslim ones, do have some form of Syariah qualification or certification.

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 Syariah Court. Many of the cases which go to trial or on appeal deal with ancillary issues such as the distribution of matrimonial assets, which is largely governed by statute. The factors as codified in Section 52(8) of AMLA are based on the principles of just and equity, which is in accordance with the principles in Muslim law.

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 Singapore and it does not impede the administration of justice in the Singapore Syariah Court & the Appeal Board. The system ensures that the appropriate judicial officers with the relevant background, qualification and expertise will hear and decide on the issues in dispute be it in the Syariah Court or the Appeal Board. The Syariah Court has been the institution in settling disputes between divorcing parties and it has become the philosophy of the Court to strive for justice and to administer fairly and effectively the cases before it.

 

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 Singapore’s success, with equal respect accorded to their socio-cultural identity.

61.       Looking ahead, key Muslim institutions like MUIS, the Syariah Court and ROMM will have to ensure that they remain relevant to meet the community’s future needs. Undoubtedly, it is a work in progress but these institutions have worked tirelessly to ensure a robust infrastructure, put in place programmes that are needed by the community and provide a responsive and dynamic leadership. It also means working very closely and in partnership with other institutions in the public as well as the private sector. 

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 Singapore Constitution

[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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