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Best Practices on Family Law Issues
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TABLE 3
Family Law Issue Current Practice in Malaysia Best Practices in the Muslim World
Age of marriage The minimum age of marriage is 16 for females and 18 for males. The Shariah court judge can use discretion to give written permission for the marriage of minors. Morocco: Under the Personal Status Code (2004 revision), the legal age of marriage is 18 for boys and girls.
Consent for marriage Consent of both parties is mandatory except in the states of Kelantan and Kedah, where if the woman is an unmarried virgin, her wali mujbir (father or paternal grandfather) can marry her to a man of equal status as she is, without her consent. Tanzania: No marriage shall be contracted except with the consent, freely and voluntarily given, by each party. Tunisia: There is no marriage without the consent of the spouses. Consent should be manifested in an indisputable manner by saying "yes" before the officiating officer.
Wali for marriage Consent of wali is necessary for the bride although she may apply for a judge to consent as wali hakim if her wali nasab (father or male relative) unreasonably refuses consent. Tunisia: Both husband and wife have the right to contract their marriage themselves or appoint proxies. Sri Lanka, Bangladesh and Pakistan (under Hanafi jurisprudence): A wali is not required for Hanafi women who have attained puberty. Cameroon , Fiji, Gambia, Turkey, Uzbekistan and Kyrgyz Republic: No wali is required.
Witnesses for marriage The Kelantan Enactment requires male witnesses. The practice in other states also calls for male witnesses, even though it is not explicit in the law Senegal: Two adult witnesses required, one for each spouse. The sex of witnesses is not specified.
Polygamy Contracting polygamous marriages requires permisson from the Shariah Court. Conditions vary slightly among the 13 states. Penalties exist for failure to follow procedures. Tunisia: Any man who contracts a polygamous marriage can be jailed for a year or fined 240,000 Tunisian francs, or both. A wife who knowingly enters a polygamous marriage is also liable to the same punishments. The marriage can be nullified by either spouse, guardians, mothers, or the legal department.
Nusyuz Nusyuz is defined as disobedience of wife. Any woman who wilfully disobeys any order from her husband that is lawful under hukum syara' commits an offence and shall be punished with a fine. Wife is not entitled to maintenance if she is disobedient. Turkey: The family is based on equality between spouses and both have joint decision-making powers regarding the family. Indonesia: The rights and responsibilities of the wife are equivalent to the husband's in the life of the household and in social intercourse in society. Tunisia: The spouses are to treat each other with kindness, make their conjugal life pleasant, and refrain from causing each other harm.
Divorce Husbands' pronouncement of divorce outside court – even through SMS – is recognised, subject to his paying a fine. A wife who initiates divorce often faces numerous delays and will be ordered to undergo reconciliation and mediation proceedings with no time limit imposed. Indonesia: A husband married under Muslim law must provide the religious court with a written notification of his intention to divorce. The six grounds for divorce are available to both husbands and wives, before reconciliation meetings are called separately, failing which the court calls the parties to witness the divorce. Revocable divorce is not recognised. Tunisia: Divorce shall only take place in court. There is equal grounds for divorce for husband and wife, including "at the will of the husband or at the request of the wife".
Mut'ah (compensatory payment by the husband to the wife, paid on divorce through talaq or where the 'fault' lies with the husband) A woman divorced without just cause may apply mut'ah but the amount of mut'ah is left to the discretion of individual courts.Tunisia: If a woman is 'wrongfully' divorced, she may be awarded the mut'ah in the form of a lump sum, a property transfer or monthly instalments. The amount paid to a woman may be determined by the standard of living the wife was accustomed to. Turkey: The party least at fault and who has suffered injury to their actual or potential interests due to the divorce can claim reasonable compensation, paid monthly or in lump sum.
Custody and Guardianship The best interest of the child is the paramount consideration but for young children, it is presumed that their best interest will be served by being in the custody of the mother, if she had not remarried. Guardianship is always vested in the father. Cameroon & Central Asia Republics: Custody and guardianship can be given to either parent, with the best interest of the child as the paramount consideration. Tunisia: Both parents have equal rights in custody and guardianship during marriage and the court decides custody in the best interest of the child in the event of divorce. If custody goes to the mother, she exercises the authority of guardianship in relation to the child's travel, education and financial affairs.

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