Applicability of Muslim Law in Singapore
Date
11 November 2006News
Applicability of Muslim Law in Singapore
By Ahmad Nizam Abbas & Mohamed Faizal*
The Administration of Muslim Law Act (AMLA) ("the Act"), enacted in 1968, provides for the establishment of the Majlis Ugama Islam Singapura ("MUIS") which administers Muslim affairs in Singapore. It is worth noting that under Section 2 of the AMLA, a 'Muslim' is defined as a party who 'professes the religion of Islam'. The Act similarly provides for the setting up of a Registry of Muslim Marriages to register and regulate Muslim marriages and the establishment of a Syariah Court to deal with, inter alia, Muslim divorces and ancillary issues arising therefrom. Appeals from both ROMM and Syariah Court are heard by the MUIS Appeal Board. In addition, the Act empowers the Syariah Court to issue Inheritance Certificates on the estates of deceased Muslims.
This paper seeks to highlight certain aspects of the Act that may be of interest to the young practitioner, especially those who wish to obtain a deeper appreciation of the impact of Muslim Law in the realm of family law, probate and conveyancing. In addition to the Act, you should familiarize yourself with its subsidiary legislation, the Muslim Marriage & Divorce Rules 1999 and section 17A of the Supreme Court of Judicature Act.
A. THE REGISTRY OF MUSLIM MARRIAGES (ROMM)
- The ROMM possesses sole jurisdiction to register marriages where both parties are Muslims. As a consequence, the secular-based Registry of Marriages (ROM) does not possess jurisdiction to register marriages between 2 Muslims and conversely, the ROMM has no jurisdiction to register any marriage between a Muslim and a non-Muslim (in which case, the Women's Charter is, instead, applicable).
- While polygamy is permitted under the Act, it should be noted that this would only be allowed upon the satisfaction of strict pre-conditions. As a lawyer, you may be approached to draw up an Undertaking whereby the applicant who seeks to enter into a polygamous marriage, declares, inter alia, his ability to treat all his wives (current and intended) in a just and equitable manner. Notably, the ROMM also requires the consent of the current wife as a prerequisite to approval. An appeal from the decision of the ROMM to disallow a polygamous marriage shall lie to the Appeal Board.
B. THE SYARIAH COURT
PURVIEW OF THE SYARIAH COURT
- The Syariah Court essentially acts akin to a family court. Its jurisdiction, as stipulated in Section 35(2) of the Act, primarily encompasses matrimonial matters including the breach of contract of betrothal, maintenance, nullity of marriage [and divorce and ancillary matters arising therefrom] and the presumption of death of a spouse after a certain mandated period.
With regard to coram, the Syariah Court is presided over by the Senior President and one other President. So as to facilitate the needs of the Court, there are, at present, 4 ad-hoc Presidents (consisting of Muslim District Judges from the civil courts) who are bestowed with the same powers and perform the same functions as the President. The Registrar's post was created in 1999 and performs almost the same functions as the registrars in the civil courts. There have been 2 two Registrars since its inception, the first being a District Judge on secondment (from the Subordinate Courts) and the other, a lawyer formerly in private practice.
- DIVORCE, NULLITY OF MARRIAGE AND ANCILLARY MATTERS
The Syariah Court possesses jurisdiction where parties were either married under the provisions of Muslim law or where the parties are both Muslims (regardless of the location of the marriage). Where a marriage had been registered in a foreign jurisdiction, parties should obtain a certificate from the ROMM to certify the validity of the marriage. Where such validity is in doubt, one is required to obtain a Ruling of the Legal Committee (otherwise known as a Fatwa), which is headed by the Mufti (the procedure for such application is comprehensively set out in section 32 of the Act). - PROCESS OF CASE IN THE SYARIAH COURT
A strict prerequisite of the initiation of divorce proceedings in the Syariah Court is the filing of a complaint at the counseling unit on the 4th storey of the MCYS Building, Thomson Road. Only upon such filing and a consequent interview with a counselor who would be required to deem the parties irreconcilable, would the parties be free to proceed to file a summons for a divorce at the 2nd floor. - TYPES OF DIVORCE APPLICATIONS
As legal counsel, it would be important to understand the distinction between the instructions to be taken from the husband and wife, arising from the difference in manner of initiation of 'divorce'. To this end, the husband only needs to state his intention to pronounce the talak on the wife. A wife however can only apply for divorce by way of taklik, fasakh, kholok, or to seek registration of divorce where her husband has already pronounced the talak on her. - THE CLAIMS UNDER A DIVORCE APPLICATION
The 4 main issues are eddah, mutaah, custody/access and division of matrimonial assets. Eddah constitutes maintenance for the wife during the 3-month period after she has been divorced. Mutaah is a global compensation that is computed based on the length of the marriage. You can access the Syariah Court website to be more familiar with these 2 claims. It is common practice for the husband to be allowed to pay the mutaah via instalments or via the deduction of such amount from the nett proceeds arising from completion of the sale of the matrimonial property. - ALTERNATIVE JURISDICTION FOR CUSTODY AND ACCESS AND/OR DIVISION OF MATRIMONIAL ASSETS IN CIVIL COURTS
- ENFORCEMENT OF ORDERS MADE BY THE SYARIAH COURT
A. Enforcement of Orders (General)
A party wishing to enforce an Order of the Syariah Court may apply for the Order to be registered in the District Courts. Upon such registration, the Order would, for purposes of enforcement, be of the same force and effect as if it were originally an order of the District Court (section 53(2) of the Act). Such an application would be initiated by way of an originating summons supported by affidavit.
It warrants reminder however that should any variations to the original order be required, the requisite application should be made 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 (GM v GN [2004] SGDC 284). The only additional orders that the District Court can make at the registration stage are as provided for in Form 192B (Order for Registration of Order Made by Syariah Court) of the Rules of Court: namely, an order to costs or the facilitation of the Defendant's application to set aside the registration.
B. Enforcement of an Order involving Execution of Documents
Where a party fails to comply with an Order that requires him to execute certain documents (such as a transfer 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 the AMLA. Such an application is made by way of filing a summons in chambers with supporting affidavit.
C. Penal Sanctions
A party aggrieved by the other party's breach of the Syariah Court's order would be able to initiate a complaint to the Magistrate in the Subordinate Courts. Such an application would entail the possible imposition of penal sanctions: under Section 52(13) of the Act, non-compliance of an Order constitutes an offence for which a defaulter may be liable to imprisonment of up to 6 months upon conviction.
D. THE APPEAL BOARD
The Appeal Board hears appeals from a dual-fold source: first, from decisions of the Kadi of ROMM, and second, from the decisions and orders of the Syariah Court. On an appeal from the decision of the Kadi or the decision or order of the Syariah Court, the Appeal Board may confirm, reverse or vary the decision or order, exercise any power or make any order which could have been exercised or made, or order a retrial (Section 55(5) of the Act). To achieve an equitable result, the Board has the discretion to receive further evidence and in certain situations, to allow for leave to appeal out of time.
The Appeal Board does not convene in the same building as the Syariah Court, but instead, convenes at MUIS at Braddell Road. There is a one-month timeframe from the time of the decision by the Court/tribunal below upon which to file such appeals. Not all appeals would, ipso facto, come before the Appeal Board: appeals against the orders of the Registrar are instead made to a President in chambers by way of a summons in chambers. Appeals to the Appeal Board are also circumscribed in consent orders to exceptional circumstances, and a decree of divorce by consent of the parties by the Registrar is appealed against to the Appeal Board.
In contradistinction to the unclear situation before the 1999 Amendment to the Act, it is now undoubted that any decision of the Syariah Court or the Appeal Board shall be final and conclusive, and no decision or order of the Syariah Court or the Appeal Board shall 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 on any account. This legislative enactment effectively put an end to a slew of High Court applications in the 1990s for orders on custody and matrimonial property involving Muslim parties notwithstanding the existence of Syariah Court orders on the exact same ancillary issues (read Salijah bte Ab Lateh v Mohd Irwan Abdullah [1996] 1 SLR 63 and Muhd Munir v Noor Hidah [1990] SLR 999).
E. MUSLIM SUCCESSION AND INHERITANCE
Apart from its judicial function, the Syariah Court is also empowered, under Section 115 of the Act, to issue Certificates of Inheritance under Muslim law that serves to certify the persons entitled to share in the estate of a deceased Muslim according to the different schools of Muslim law. The certificate represents a prerequisite to a Grant of Probate or Letters of Administration for the estate of a deceased Muslim.
Before such an application, it may be best to first obtain a preliminary computation of the entitlement of your client via the use of an online calculator that can be found at the Syariah Courts' Inheritance Website: see www.faraid.gov.sg. While such an analysis would, for obvious reasons, be non-binding, it would enable a preliminary computation of your clients' likely inheritance so as to plan accordingly even before the issuance of the said certificate.
Please note however, that under section 114 of the AMLA, even the inheritance certificate itself is not a replacement for a grant of letters of administration or probate: this is because the certificate in itself does not, ipso facto, give rise to legal rights or entitlement.
The Syariah Court's statutory duty is limited to the provision of a certificate stating the shares of any combination of persons, real or hypothetical, in relation to any query submitted to it. Accordingly, this should be a consideration in advising your clients in light of the existence of cases of fraud committed by unscrupulous persons using false or incomplete submissions to obtain misleading Inheritance Certificates. Indeed, the writer himself has unfortunately handled a case where a person procured an Inheritance Certificate by holding herself out to be a daughter of the deceased and thereby obtaining for herself the Grant of Letters of Administration (Probate No. 581 of 1981).
You should also note that where the deceased did not leave behind any male heir, the Inheritance Certificate would mandate that a portion of the estate be vested in Bai'tul Mal. The Bai'tul Mal represents a trust fund for the Muslim community that is administered by MUIS.
Any dispute over the succession or inheritance, where applicable, is to be resolved in the civil courts as there is no provision for the Syariah Court to adjudicate over such matters. However, as illustrated by the recent case of Mohamed Ismail bin Ibrahim and another v Mohammad Taha bin Ibrahim [2004] 4 SLR 756, the civil court would take into account the principles of Muslim law and the provisions under AMLA when it determines the validity of distribution of a deceased Muslim's estate.
In light of the above information, one should be very careful when assisting a Muslim in making a will. The general principle is that the testamentary disposition may not exceed one-third of the estate of the deceased. Further, the testator cannot give one heir a larger share than he is entitled to under Islamic law (hukum faraid) unless such disposition is made with the consent of the other heirs. That said, it should be noted that the formalities of making a will for a Muslim is, as is the case with other wills, governed by the Wills Act. It appears to be the practice today that in an application for probate or letter of administration with will annexed, the Court requires a Ruling of the Legal Committee (Fatwa) on the validity of the particular will.
F. MUSLIM TRUSTS IN SINGAPORE (WAKAF PROPERTY)
The quintessential worst-case scenario for any conveyancer is to discover belatedly that the property due to be sold actually comprises wakaf land. Wakaf land is trust property that has been dedicated for pious, religious and charitable purposes (Section 58(2) of the Act). Under the Act, all wakaf property automatically vests in MUIS and is incapable of any conveyance, assignment or transfer (Section 59 of the Act). One may also wish to take note of the Court of Appeal's pronouncement in Abdul Rahman bin Mohamed Yunoos & Anor (Trustees of the estate of M Haji Meera Hussain, Deceased) v. Majlis Ugama Islam Singapura [1995] 2 SLR 705 that the provision applies even to wakaf created before the enactment of the Act.
Since 1999, it has become mandatory for all wakaf land to be registered with MUIS (Section 64 of the Act). Failure to comply with such registration, as stipulated by Section 64(11) of the Act, constitutes an offence punishable with fine or imprisonment or both. The revised state of affairs very much represents a reprieve for conveyancers who are now better able to ascertain the status of a property by merely doing a search in the registry of wakafs. That said, one should never assume that such a search is sufficient as there can still potentially be instances of non-registration. As a final note, any dispute over wakaf property comes under the jurisdiction of the civil courts.
G. CONCLUSION
From the above discourse, it should be apparent that Singapore Muslims are in a quite unique position, where such persons are often required to straddle two different bodies of law. One example would serve to encapsulate this point: as the concept of legal adoption does not exist under Muslim law, Muslims generally do not insist on carrying the adoptive parents' name as per the application under the Adoption Act in the civil courts, so as not to confuse the child of his natural parentage.
The relatively new development of Islamic finance in Singapore today emphasizes the need for us as lawyers to be au fait with the basic principles of Muslim law and the jurisdictional issues concomitant with its application.
Finally, it may be useful to be familiar with the various offences under the Act as companies and individuals have been convicted in the district court for specific breaches, including the passing-off of products as halal (permissible), without having, in fact, been awarded such certification (section 88A(5)).
* Mr Ahmad Nizam Abbas is a lawyer with M/s Straits Law Practice LLC and a former Chairman of the Law Society's Muslim Law Practice Committee.
Mr Mohamed Faizal s/o Mohamed Abdul Kadir is a Justices' Law Clerk of the Supreme Court of Singapore.
In the event that one party has, during the course of the marriage, renounced his religion, the Syariah Court would nonetheless still be seised of jurisdiction.
It warrants reminder that the Syariah Court's powers to make orders on custody of and access to children 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, disputes over custody and access would have to be resolved in the civil courts under the auspices of the Guardianship of Infants Act (Hafiani Binte Abdul Karim v. Mazlan Bin Redzuan [1996] 1 SLR 378).
Similarly, the Syariah Court's powers to make orders on the division of matrimonial assets (as found under Section 52 of the Act) may only be exercised in divorce proceedings that are before it. Accordingly, in the absence of such proceedings, parties would have to apply to the civil courts for determination under the relevant sections of the Supreme Court of Judicature or the Subordinate Courts Acts. In such an event, the law applicable is no longer Muslim Law, but rather, the common law of property, subject to the equitable doctrines of trusts, where such doctrine is applicable (Madiah Bte Atan v. Samsudin Bin Budin [1998] 2 SLR 679).
The 1999 amendments to section 52 of the Act incorporate (albeit, with some slight modifications) the factors enumerated in Sections 112(2) and 114 of the Women's Charter as the salient factors that the Syariah Court shall have regard to in dividing matrimonial assets. In line with the convergence of factors for the Court to consider, it is not uncommon for practitioners appearing before the Syariah Court to cite Family Court cases alongside the MUIS Appeal Board decisions on division of matrimonial assets.
As practitioners, you may find yourself appearing in the Syariah Court on behalf of a particular client's divorce and ancillary matters and concurrently, in the Family Court for Personal Protection Order and maintenance applications. There are two main reasons for this: first, the Syariah Court is not seised of jurisdiction to issue PPOs and second, in light of the wider enforcement mechanisms available in the Family Court, it represents the more ideal forum to use for your client. On a related note, it may be useful to take note of Lai Siu Chiu J's judgment in Chaytor v Zaleha bte A Rahman [2001] 2 SLR 236, where, in dismissing an appeal on a maintenance summons, Her Honour held that the civil courts shall treat a married woman against whom talak has been pronounced as continuing in her status as a married woman for the purposes of section 69 (1) of the Women's Charter, until the validity of such divorce has been confirmed by the Syariah Court.
While this is by no means an immutable principle, it would be advisable to assist your client in the preparation of the Case Statement (an accompanying document to the Summons), as they would often be understandably unfamiliar with the legal grounds of divorce. There have been frequent instances where lawyers have had to apply for leave to amend their client's Case Statement, as the grounds for divorce cited therein are not applicable under Muslim law.
Upon service of the said Summons, a date would be set for mediation, about 4-6 weeks after such service. It would be important to attend this with your client as statistics have shown that more than half of the cases conclude at this point.
Should the parties be unable to come to an agreement during mediation, an appointment is made for the parties to appear before the Registrar for a Pre-Trial Conference about 3-4 weeks after such mediation. The Registrar would then give directions as to the timelines to be followed with respect to discovery of documents, filing of affidavits and the proposed hearing dates.
Unlike the procedure adhered to in the Family Court, the divorce and ancillary matters are not separated and are, instead, heard as one. In other words, when a case goes for hearing, it concludes with a final decree of divorce and orders on all ancillary issues as well with no decree nisi and no separate ancillary hearings.
A divorce by Taklik is predicated upon a breach of a condition stated on the marriage certificate issued by ROMM. Typical conditions breached include, but are not limited to, the failure to provide maintenance for at least 3 months, the causing of injury or damage to property, and desertion. Do note that in cases involving marriages contracted in foreign jurisdictions, there may not be any taklik in the first place.
Fasakh is in effect an annulment of the marriage where the Court makes a finding that the marriage is no longer capable of continuing, and the success of this application is not necessarily dependent on the finding of fault on the part of either party. You may wish to take a look at Section 49 of the Act for the list of potential fasakh situations. Kholok, meanwhile, is when the husband agrees to a divorce on the precondition that the wife pays a redemption amount to be decided by the Court.
In light of the myriad of possible types of applications as stipulated above, there are different forms for each type of divorce application all of these are found in the Schedule to the Muslim Marriage and Divorce Rules. Just as in the case of a contested divorce in the Family Court, your role as a lawyer is to advise your client on the evidence and standard of proof to support your client's application in the Syariah Court.
Where the Court is of the view that there is insufficient evidence to prove the ground of your client's divorce application, it may deem it fit to direct that parties attend a hakam/arbitration (under section 50 of the Act). Upon hearing the parties, the hakam (arbitrators) can recommend to the Court that the parties shall be divorced in such an event, the Court can decree the divorce. The distinction between each forum lies in the applicability of the strict rules of evidence: while it is trite that the former adopts the rules of evidence very strictly, the latter takes a more flexible approach towards the use of such evidence. One should also take note of the practice in the Syariah Court for lawyers not participate in the hakam sessions, instead, only coming into the picture when the Court reconvenes for the ancillary issues subsequent to the hakam session.
As a general principle, much like the Civil Courts, the Syariah Court regards the welfare of the child as a paramount consideration. Where both parties dispute custody over infants above the age of 7, such infants are deemed to be mumaiyiz (capable of reason) and would accordingly be interviewed by the Court so as to be appraised of his/her wishes. With regard to the custody of infants under 7 however, as a matter of practice, the Court almost invariably adopts a fatwa that awards custody to the mother.
With the sole exception of the absence of the equivalent of Section 112(10)(a)(i) of the Women's Charter, the definition of a matrimonial 'property' under section 52 (14) of the Act is in pari materia with that used in the civil courts (see section 112(10) Women's Charter). It is worthwhile to note that the Appeal Board has held that the payment or non-payment of eddah and mutaah would be a relevant factor in computing either party's respective share in the overall division of matrimonial assets, particularly as a redress mechanism in instances where wives waive their claims for eddah and mutaah in consideration for the husband's agreement to the divorce.
a. Proceeding in the civil courts by consent
At any point of time during the course of divorce proceedings in the Syariah Court, parties may agree to have the question(s) of custody and access and/or division of matrimonial assets on divorce determined in the civil courts. In such cases, the parties must necessarily first undergo counseling in the Syariah Court and obtain a certificate of attendance. Please note that such a requirement is absent in cases where no proceedings are currently pending in the Syariah Court.
b. Application to proceed in the civil courts in the absence of consensus
As stipulated by Section 35A of the Act, the Syariah Court may grant leave for a party to proceed in the civil courts even in the absence of consensus in appropriate cases. In such instances, the Court would issue a commencement certificate. Aggrieved parties would then be free, pursuant to Section 55(1)(f) of the Act, to appeal to the Appeal Board.
Where there is a prior outstanding application for custody of and access to children in the civil courts, such an application would be stayed automatically upon the commencement of proceedings for divorce or nullity of marriage in the Syariah Court. To that end, any party that wishes to proceed with such application would be required to apply to the Syariah Court for leave to continue. In the event that leave is granted, a continuation certificate will be issued, subject to any appeal that may be brought by the opposing party.
c. The law applicable if the question(s) of custody/access and/or division of matrimonial assets is proceeded with in the civil courts
Where the parties proceed in the civil courts, whether by consent or with leave of the Syariah Court, the law applied by the civil courts to determine the questions of custody/access and/or division of matrimonial assets is the civil law as provided for by Section 17A of the Supreme Court of Judicature Act.
