FAMILY LAW IN MALAYSIA AND SINGAPORE INTRODUCTION

Malaysia is federation consisting of thirteen States, that is, Johore, Kedah, Kelantan, Negri Sembilan, Pahang, Penang, Perlak Perlis, Selangor, Trengganu ( Collectively known as west or peninsular Malaysia) and sabah abd Sarawak. The federation follows the usual pattern of dividing executive and legislative powers between the Federation and the States and there are three lists of subjects, the Federal List, the State List and the Concurrent List. Civil and criminal law including family law is within the competence of the Federal Government and Legislatures; moreover in the East Malaysia States of sabah and Sarawak personal law is placed in the Concurrent List.

Apart feom the Muslim courts and Native courts, all the courts in Malaysia are Federal. There is one Federal courts which exercises appellate jurisdiction and also a limited original jurisditon in constutional matters. There are two High Courts, one for Peninsular Malaysia and one for East Malaysia and below these there are the Subordinate Courts, the Sessions Courts, the Magisrates Courts and the Penghulu Courts.

Each of the states in peninsular Malaysia has its own system of Muslim religious courts which deal with questions of Muslim personal law and in the East Malaysian States of sabah and Sarawak there are native customary courts which deal with native law and custom.appeals from the Muslim courts are heard by State Appeal Biards and appeal, presided over by a High Courts Judge.

Appeals from the Federal Courts in civil cases may go to the head of stase, the yang di-Pertuan Agong, who under the present arrangements refers them to the Judicial Committee of the Privy Council for hearing and for their advice.

There are a variety of family laws in Malaysia and this has given rise to some inter-personal conflicts. The muslims marry according to Islamic law and the various state enactments which deal with deal according to oslamic to law and the muslim law provide that they are applicable only to persons professing the muslim religion. The Chinese and Hindus may marry according to their own law or customs as determined by the courts. The natives of east Malaysia may marry according to their customs. In peninsular Malaysia, anyone, except a person professing the religion of islam, may have his or her marriages solemnized under the civil Marriage Ordinance, 1952, which provides for civil monogamous marriages before registrars of marriages. A marriage between Chistians or between persons one of whom is a Christian may be solemnised in according to the usages of Muslims, hindus, Dayaks or other persons governed by their own laws and customs may be solemnised under the Chursch and Civil Marriages Ordinance. In sabah marrianges between persons one or both of whom is or are a Chystian or Chystians are required to be solemnised in accordance with the Chystian Marriage Ordinance.

Divorces under the religious or customary laws are recognized. The Divorce Ordinance, is applicable only to monogamous marriages and there fore does not apply to muslim, Chinese or native customary marriage, or to most Hindu Marriages.

In Singapore the principal statutes are the women’s Charter and the administration of muslim Law Ac

In Martin v. umi Kelsom the facts were that the petitioner and the respondent went through a form of marriages for Selangor in accordance with the provisions of the Chystian marriage enactment on February 25, 1950. At the time of solemnization the petitioner was a Chystian domiciled in England while the respondent was a muslim domiciled in Salangor. The petitioner petitioned that the marriage be declared void ab initio on the ground that at the date of its solemnization he was a Chystian and the respondent a musim and there fore by reason of her personal law she was incapable of inter-marrying with him. Thomson C.J. in the high Court held that in exercise of its jurisdiction under the Divorce Ordinance (which provides that in all proceedings under it, the court should act on the principles on which the English court would act) the court must determine the validity of the Marriage according to the law of the husband’s domicile, which was English law and that so determined the marriage was valid. The decision has been criticized and it is doubtful if it would be followed today. It may perhaps be defended on the ground that the marriage was valid by the law of the interded matrimonial domicile.

The effect of a conversion to Islam was considered in public prosecutor v. white. In that case the accused married a Chistian lady at Taiping, Federated malay states, in 1918 according to the rites and ceremonies of the Church of England. In 1936 while his wife was still alive, the accused married another Chistian lady according to the Islamic law after they had been converted to the Islamic religion. In a  prosecution instituted at the instance of the first wife for bigamy, it was  held that a person who enters into a marriage relationship with a women according to monogamous rites takes relationship with a women according springing from a monogamous relationship and acquires by law the status of a ‘husband’ in a monogamous marriage and he cannot whatever his religion may be, during the subsistence of that monogamous marriage marry or go through a legally recognized form of marriage with another women. The accused was therefore held to have commited the offence of bigamy. In attorney-General of Ceylon v. Reid however in an appeal from Ceylon, the privy councilheld that there is an inherent right religion and personal law and so to contract a valid polygamous marriage if riage. It was held that the respondent in that case who had remarried after his conversion to Islam was not guilty of bigamy. It must be noted that the Ceylonese legislation dealt with in that case was rather ambiguous on the prohibition of subsequent marriages. In Singapore the position has been clarified by an amendent to section 3(2) of the Womans’s charter which clearly prevents a person who is married under the Woman’s charter and who subsequently becomes a Muslim from marrying again while the marriage is still subsisting.

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