Muslim Family Law in Singapore PDF

00:02 My name is Ahmad Nizam Abbas and I\'m your lecturer for Muslim Family Law in Singapore. Now, first of all, for purposes of the exams, and this is what you have to know, what is the core knowledge required of all of you, very simply put, they are on the bullet points on the screen. Basically,...

00:02 My name is Ahmad Nizam Abbas and I\'m your lecturer for Muslim Family Law in Singapore. Now, first of all, for purposes of the exams, and this is what you have to know, what is the core knowledge required of all of you, very simply put, they are on the bullet points on the screen. Basically, I will go through the key elements or the key sections in AMLA, which is the Administration of Muslim Law Act. 00:32 Then I will go through the civil, which is the personal or family laws applicable to Muslims in Singapore. Then very importantly, we are going to deal with the Sharia court because this is the court where a lot of the action takes place for the Muslim law practitioners in Singapore. And basically we will deal with the jurisdiction and the powers. And it is also very important for us to know the interplay between the civil courts. 01:01 and the Syariah Court and in that regard we need to know a little bit of the SCJA together how it works with the Amla. And finally the enforcement of Syariah Court orders in the Family Justice Courts. 01:16 So now, Muslim family law in Singapore, although it is a fairly new subject for Part B, this is only the second year it is running, is actually not new in the context of the laws in Singapore. In fact, the former Chief Justice Chan Sik Kiong said in Shafiq bin Salim that the Second Charter of Justice 1826, when it introduced the entire corpus of English law to Singapore, 01:44 Very importantly, it was still subject to the customs and personal laws of the inhabitants. So as far back as even before 1826, the Muslim family law was already in practice in Singapore. But it only went through the formalities in 1880 through the Muhammadan marriage ordinance and the 1957 Muslim ordinance which saw the establishment of the Sharia court. And the 02:13 Administration of Muslim Law Act was passed after Singapore became independent and we now rely on the AMLA for practically all things that govern Muslim Law in Singapore. Now, so the first piece of legislation that you should always look out for when we talk about Muslim Law is the AMLA. And in the preamble it says that it is an Act relating to Muslims and to make provisions for regulating Muslim religious institutions. 02:42 and to constitute a council to advise on matters relating to the Muslim religion in Singapore and Ashariah Kor. Now, so the Amla as you can see from the slides, it came into force in 1968. Now, some people have asked whether or not it contains a code of Muslim laws. While there are some sections where they set out like for example the grounds of divorce which appears to be like a 03:11 But by and large, the amla is merely on the administration of Muslim law. And so you may not find the substantive law that you are looking for. In any event, why the amla is important is because it is the statute that created the three very important institutions in Singapore. Muiz, which is the Islamic Religious Council of Singapore, the Shahrekod. 03:39 and the Registry of Muslim Marriages or ROMM. Now, so why do we need to know about the Amla? Okay, and for this, let\'s put the general position. All laws of the land are applicable to Muslims in Singapore unless there is a specific exclusion of its application to Muslims or those married under Muslim law. But in order to understand, right, who is applicable for 04:08 we need to know what is the definition of a Muslim. And under section two of the amla, a Muslim merely is someone who professes the religion of Islam. And if you read certain old case law, you\'ll find that the judges have grappled with this. It is not whether a person prays or just whether he fasts or not, whether he drinks alcohol. But so long as the person says, yes, I am a Muslim. 04:36 then the court will treat the person as a Muslim. Now, and then what we need to know that also is this, because all laws of the land are applicable to Muslims. So you look at, for example, the Women\'s Charter, and you see for yourself, which are the parts that do not apply to the Muslims. And in this regard, you look at parts two and part six of the Women\'s Charter. All right, and I brought up one example, section three, four of the Women\'s Charter. 05:06 no marriage between persons who are Muslims shall be solemnized or registered under the women\'s charter. Meaning, if both parties are Muslims, they cannot, even if they want to, go to the registry of marriages and say they want to be married under women\'s charter. They will be turned away. And with regard to the Intestate Succession Act, nothing in this act shall apply to the estate of any Muslim. 05:34 or shall affect any rules of the Muslim law. What it simply means is that the Intested Succession Act does not apply to Muslims because Muslims will be governed by their own Muslim laws of inheritance. Now, so again if you look at the chart here, there are examples that we have laid down whereby in which situations are the laws 06:01 involving personal family laws applicable also to Muslims. So if you go through the Women\'s Charter very carefully, even though there are some sections that are not applicable to Muslims, there are sections that are applicable to all, including Muslims. So for example, the maintenance of the wife during the marriage, the maintenance of children, 06:32 then the guardianship of Infants Act, do they apply to Muslims? The answer is yes. Where? There is no divorce proceedings. Right? When it comes to the adoption of Children\'s Act, Muslims also go through the same process in legally adopting their children. But the difference is that the impact of adopting a Muslim child is that, unlike the civil laws, the Muslim child does not become a beneficiary. 07:01 of the adoptive parent. And then you have the Provid and Administration Act, which makes it clear that the asset distribution is governed for Muslims by Muslim law. We\'ll come to the inheritance certificate at the relevant topic in a couple of lectures later on. Now, so a key element of this course is the Sharia Code. This is a unique code in Singapore which caters to Muslims. 07:30 or Muslims or people who are married under Muslim law. Now, the jurisdiction of the Sharia court. Now, if there are only a few sections that you need to read in the Amla, this is one of them. Section 35.2 of Amla because this is the section right where the Sharia court derives its jurisdiction and thereafter its power. So you you can see for yourself 08:00 if parties are Muslims or where the parties were married under Muslim law and it involves disputes relating to marriage, divorces, nullity of marriage, division of assets and the consolatory gifts or the payment of Nafkah Eidah, then it will come under the Sharia Code. 08:30 is that the Shah Rakhot has jurisdiction only if either party to the marriage is domiciled in Singapore or habitually resident in Singapore for at least three years. This amendment was to take into account the difference in demographics because there are more foreigners now that live in Singapore and they have used the Shah Rakhot of Singapore. So 08:57 Let\'s talk about the types of jurisdiction involving the Sharia Code. Now, what I\'ve done is to break it up into the different types of jurisdiction. Personal jurisdiction, subject matter jurisdiction, territorial jurisdiction and concurrent jurisdiction within the courts, with the civil courts. Now let\'s talk about personal jurisdiction first. 09:27 Personal jurisdiction if the parties are Muslims or married under Muslim law and you can find this in Section 35 to of the Amla. This is a very important section Okay. Now again, I have already said To order to understand who is a Muslim right? It is not so much what he does but what he professes section 2 of Amla and 09:54 If there\'s a case law that you may want to read, there\'s this interesting case law of Yeo Pei-Chen and Xiao Zheng-Chen Yisa, a 2007 case where it talks about the essential elements or requirements for a Muslim marriage. Because remember, for a person to have personal jurisdiction, he or she must be Muslim and they must have been married under a Muslim marriage. And that\'s case law. 10:25 where parties who may have undergone both ROM and ROMM marriages, a decree of divorce from the Shah Rai Khor will dissolve the civil marriage too. But this is an old case, 2006, and you may not likely see this happening much more because this was back in the days before computerization and people actually managed to get married in both the ROM and ROMM at the same time. 10:54 something which is unlikely to happen today. Now, so I\'ve gone through this, right? Who is a Muslim? Now, and again, the essential requirements for Muslim marriage. And then for the case of Isa and your patient, as I said, very briefly, this was a case whereby there were two marriage certificates. And in one, she said she was a Muslim, but in the other one, 11:24 she left it blank and because there was this uncertainty as to whether or not there was a Muslim marriage, the appeal board ruled that it was too uncertain for it to be conclusive and therefore they held that it was not a Muslim marriage and Charikot did not have jurisdiction. Okay, and I\'ve already mentioned about Noor Azizan\'s case. 11:53 Now, so I\'m going to, this is a case where you can skip, or not skip, but you can probably read on your own for interest as I said. It\'s unlikely that it will happen today where parties will be prevented from having two marriages at the same time in ROM and ROMM. In the old days, it was possible and it did happen. Now so let\'s go to territorial jurisdiction next. Now 12:20 Since 22nd October 2018, the Sharikot has jurisdiction only if either party to the marriage is domiciled in Singapore or habitually resident in Singapore for at least three years prior. In this regard, you may draw a comparison with the Women\'s Charter because you will realize that it is actually similar with the time requirement for marriages or jurisdiction of the 12:49 the family justice court under the women\'s charter. It was done because prior to 2018, there were cases where parties who had not even been to Singapore would come to Singapore purely to get a divorce simply because the amla stated that so long as the parties were Muslims or married under Muslim laws. So it is tighter now. Now, when it comes to\... 13:17 foreign marriages because some of you may have clients who come from different countries and they now live in Singapore and they have lived for at least three years. Now it\'s very important for you to make sure that the Sharikot accepts that the marriage was under Muslim law. And sometimes you need to have an affidavit of foreign marriage either through lawyers or the relevant authorities. 13:46 where the marriage was convened to testify to this. Okay. Now, okay. I will come to the foreign divorces when I talk about the orders at a much later lecture. Now, then we come to the subject matter of jurisdiction. Oh, sorry, or to subject matter jurisdiction. Now, what can the Sharia court do, right? Once it has jurisdiction upon divorce, 14:15 and it\'s very important, upon divorce, right? Then it has the ability, it\'s empowered to do the following, okay? You can see from your slides. Now, then what about this term called concurrent jurisdiction with the civil courts? This may be very confusing at times, so let me go through this a bit slower. Now, it all started because back in the 1990s, right? 14:45 there were, pre-1999, there were cases where parties brought the action in both the Sharia court and the civil courts, i.e. the High Court, when they had disputes over children, over the matrimonial assets and enforcement of court orders. So you had a situation whereby parties were divorced in the Sharia court, but a while later\... 15:15 They were unhappy with the situation over the child or the assets and the timing for the appeal was over and they wanted to vary the child record order. So what they did was they would run over and file a fresh application in the High Court. And there were cases whereby some High Court judges granted the orders and some did not. So this led to a very confusing state of affairs. And therefore, what the\... 15:43 the amendments to the amla in 1999 did was to clarify that number one, when it comes to divorce, only the Sharia court can deal with the divorce. But when it came to the ancillaries, the Sharia court is also the court that has the first priority over the ancillary matters. And in only specific situations can parties have their ancillary matters heard. 16:13 in the civil courts. And in order to go over to the civil courts, leave must be obtained from the Sharia court. And there\'s two types of leave. One, you need a commencement certificate to start the civil court proceedings or if you had started the civil proceedings before the filing of the divorce at the Sharia court, then leave to continue those civil proceedings. 16:42 Now, again, don\'t worry about it because we will touch that again at the next lecture. But the other thing that is important for you to know again is this. If parties have been divorced already overseas by a court of competent jurisdiction overseas, then the Sharia court no longer can make any order on\... 17:11 the division of assets and on the children. Why? Because the Shah Rekord\'s power to make an order on children and division of assets, right, is dependent on the Shah Rekord having jurisdiction on the divorce. Therefore, if the Shah Rekord is not hearing the divorce, the Shah Rekord cannot adjudicate over the children. 17:39 and the matrimonial assets. And therefore, what happens? And I would suggest you read the case of TMO and TNP, which is a court of appeal judgment. It is a full bench on this term called residual jurisdiction. And what the court of appeal determined was that where the Shah Rekord has no jurisdiction over the division of assets and over the issue of custody, 18:09 then the Civil Courts, in particular, the Family Justice Court, it has residual jurisdiction over Muslims. And how do you do it? Right, is you have to apply under section 1 to 1 of the Women\'s Charter under application for financial relief after an overseas divorce. Now, so it\'s, I know it\'s a bit complicated, but 18:39 Again, it\'s something that you ought to know, right? That section 17A, capital A, two of the SCJA, the Supreme Court of Judicature Act, right? Therefore, it\'s the section that you need to read to see why is it, right, that the parties can actually think whether or not they want the ancillaries to be heard in the Sharia court or at\... 19:09 the civil courts. But again be very careful because as I said you need leave right? Now and therefore what is the test for obtaining leave from the Shah record? Now a good case to read will be BU and BV is a 2018 SSAR case and for those of you who are not familiar 19:38 stands for Singapore Sharia Appeal Reports. You can find it on the law net. So in this case, the Sharia Court judge had to deal with an application for leave for the parties to continue the action on children that had started before the divorce action. And the test used by the Sharia Court 20:05 is what is known as the balancing of interest test. So in granting leave, whether or not it would allow for the more expedient resolution of the relevant issues and whether such expediency is necessary, whether or not it will lead to an unnecessary duplication of legal proceedings, prejudice, whether there will be prejudice, undue prejudice to the other side\'s position, and always, whenever it comes to children, 20:34 whether or not it will affect the welfare of the children. It\'s a good case to read. I would recommend reading this. It\'s a very sensible test. And what happened in a case like this is that it is very fact-specific. So the Sharia Court will also look at what stage of the proceedings are the parties at the civil courts when it came to the children issues, for example. If multiple affidavits have been filed, 21:03 you have already gotten a hearing date, then the Shah Rekord will say, why do you want to have another order here at the Shah Rekord? So they will grant leave probably for the Family Justice Court to make or to continue hearing the case. Okay, but you need to know also that when therefore they come back to the Shah Rekord for the main divorce, what will happen is that the Shah Rekord 21:33 can still make an order on the children\'s issues. Right? And when the Sharia court makes an order on the children\'s issue, that will supersede the Family Justice Court order. So think about the practicality of having actions in both courts as well, because if really you feel that in the interest expediency, you need a Family Justice Court order, because you don\'t know when the Sharia court adjudication hearing will take place. 22:02 then go ahead. But if it is going to be so near to the Sharikot order, is it really necessary? Okay. Now I\'ll move on. Okay. Now, so under the SCJA, right, the parties can also continue the civil proceedings by consent. So you can actually bypass the leaf. 22:32 if there is concern by both parties. 22:37 Okay, so let\'s deal now with the powers of the Sharia court. Okay, and always remember again, a reminder, you only have powers where you have jurisdiction. So where there is no jurisdiction, there are no powers. So the Sharia court, right, is empowered under section 52. This is another must-know section to do the following. Actually, frankly speaking, number A is very rare. It hardly ever happens now. 23:05 It\'s a situation where at the time of the marriage, there\'s promise by the husband to help to pay the marriage expenses and he doesn\'t. It\'s very rare. So focus on B, C and D, right? They are the more common ones. Okay. So you see here, there\'s also the\... Let me just go back. There\'s also the\... Okay, the common orders, I can just move on here. It\'s easier. 23:33 I\'ve made this easier for you by putting it on a slide on its own. The common orders made by the Shah Rai court in a typical divorce case. So number one, it will make a declaration that the marriage has been dissolved. It is a decree by the court. And then it will make an order for Nafkah Edah by the husband to the wife. And Nafkah Edah is actually the maintenance of the wife during the three months period where she cannot remarry. 24:03 and then you have the payment of muta\'ah by the husband to the wife, that\'s defined in the amla as a consolatory gift. So if you look at the nafkah eda and payment of muta\'ah, those are key differences between the orders made by the women\'s, under the women\'s charter at the FJC and the orders made at the sharekot under the amla. Whereas if you look at custody care and control of the children 24:33 It\'s very similar to the women\'s charter now so the the orders on Mutah and Nafkah Eda they in the if the parties of the husband refused to pay Just take note that what happens is that you enforce it not at the Sharia court but at the Family Justice Court and for simplicity Right it is now 25:03 The orders of the Sharaya Court are deemed to be orders issued by the FJC very much or akin to a maintenance order. So for example, in the Family Justice Court, you will get typically an order that the husband to pay X thousand dollars or X hundred dollars to the wife. In the orders for Mutaha and Nafkah Eda, it used to be normally a lump sum order, but now\... 25:32 there will be a lump sum order for the Mutaha, but there will be a monthly installment payment. So it will look like, okay, the payment of Nafkah, Edah and Mutaha will be, let\'s say \$1,000 a month. So if there is a default, that is what you are enforcing, right? \$1,000 a month, and then you just calculate how many months has he defaulted, or maybe in full, you just total it up, okay? And I\'ve given some examples of mechanisms. 26:01 that are available if you want to enforce a Sharia Code order. Now so apart from the monetary orders, right, you also go to the family justice court to enforce orders on the children and division of assets. So these are the common examples. There\'s one which has a very catchy name called Bosco. It stands for Bridge of Sharia Code. 26:30 orders, you can look up the FJC website on this, where you file a complaint and then they will arrange for a mediation. Hopefully it can be resolved. If not, it will go to the next level. The other mechanism is that you can lodge a complaint by way of private summons in the state courts, or there could also be content proceedings very similar to what you do in\... 26:58 the family court proceedings. So this is where the, what is important to note therefore, that an order whilst made in the Sharia court, the enforcement is actually in the family justice court. The exceptions or situations whereby you don\'t need to go to the family justice court would be when it comes to the signing. 27:26 of the sale documents or transfer documents of matrimonial property. And this is the example used is where there\'s a proxy powers given to the Sharikot where they can sign on behalf of the defaulting party. And that ends the lecture for today. Thank you very much. Central Topic - Topic 1 - Applicability of Muslim Family Law in SG - Administration of Muslim Law Act 1966 ("AMLA") - Applicability of AMLA - Civil (Personal/Family) Laws Applicable to Muslims - Jurisdiction of the Syariah Court - Definition of Muslim - Section 35 AMLA - Types of jurisdiction - šPersonal jurisdiction -- section 35(2) AMLA - What are the [essential requirements] for a Muslim marriage? o Yeo Pei Chern (Yang Peizhen Freda) v Seow Zheng Xin, Isa (alias Mohammed Isa Abdullah) (2007) 4 SSAR 146 - Noor Azizan bte Colony v Tan Lip Chin (alias Izak Tan) \[2006\] 3 SLR(R) 707 **[SYC divorce is recgonised under civil law]** - Who is a muslim? **s2 AMLA** - šTerritorial jurisdiction -- section 35(3) AMLA ------- ---------------------------------------- Flags Risk; \[\"mmStockIconFlagRed\", \"\"\] ------- ---------------------------------------- - šSubject-matter jurisdiction -- section 35(2) AMLA - **[šConcurrent jurisdiction]** with the civil courts -- **[section 17A SCJA and section 35A AMLA HAVE TO BE READ TOGETHER]** ------- -------------------------------------------------------------- Flags  Risk; \[\"mmStockIconFlagRed\", \"\"\] ------- -------------------------------------------------------------- - **[TMO v TMP]** - **[Residual jurisdiction]**: Where there is NO specific exclusion and NO separate Muslim law, Civil Courts (especially FJC) have "residual jurisdiction" over Muslims. ------- ---------------------------------------- Flags Risk; \[\"mmStockIconFlagRed\", \"\"\] ------- ---------------------------------------- - Residual jurisdiction is where the parties are already divorced and therefore have no divorce application. E.g. The Civil court has jurisdiction if the SYC did not hear matters on (1) Maintenance (2) Children and (3) division of matrimonial assets. Concurrent jurisdiction is where both courts have the jurisdiction and powers to hear the issues of the children and the assets - s17A Civil jurisdiction --- concurrent jurisdiction with Syariah Court in certain matters - s35A AMLA - Permission to **[commence]** or to **[continue civil proceedings]** involving disposition or division of property on divorce or custody of children - s35A(1) AMLA - SYC grant leave to **[commence]** civil proceedings ------- -------------------------------------------------------------- Flags  Risk; \[\"mmStockIconFlagRed\", \"\"\] ------- -------------------------------------------------------------- - s35A(2) AMLA - SYC grant leave to **[continue]** Civil proceedings, if SYC proceedings have commenced. ------- ---------------------------------------- Flags Risk; \[\"mmStockIconFlagRed\", \"\"\] ------- ---------------------------------------- - What is the **[Test]** for obtaining leave from the SYC? (AK v AL) ------- -------------------------------------------------------------- Flags  Risk; \[\"mmStockIconFlagRed\", \"\"\] ------- -------------------------------------------------------------- - Children\'s issues - **[FJC does not have]** - Mutual consent to continue with civil proceedings in FJC for divorce proceedings - Where the foreign Court had not made orders on anciallary matters, the options available are : - UJM v UJL \[2021\] 2 SLR 1467 - Powers of the Syariah Court - s52(3) AMLA - SYC\'s powers **[upon divorce - The Shariah Court has no powers without divorce application]** - Section 53 AMLA - s53(1) AMLA - SYC\'s enforcement orders - Common SYC enforcement orders - s53(2) AMLA - SYC orders deemed to be civil court orders - **[BOSCO]** - s53A AMLA - SYC\'s proxy powers - Enforcement of Syariah Court Orders in the Family Justice Courts