Muslim converts should have right to divorce, lawyers’ group says

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Source: The Malay Mail Online

KUALA LUMPUR, Aug 26 — The Malaysian Shariah Lawyers Association (PGSM) demanded today for the right of Muslim converts to annul civil marriages.

PGSM president Musa Awang pointed out that Section 51 of the Law Reform (Marriage and Divorce) Act 1976 states that if either spouse converts, only the non-converting spouse can file for a petition to dissolve the marriage within three months after the conversion.

Musa said that this is an unfair provision as it seemingly penalises the Muslim convert spouse, who would automatically lose the locus standi to file the petition under the LRA.

“The law must be amended in such a way as to grant the converting spouse to also file the joint petition to annul his or her marriage. Only then this would be a win-win solution,” Musa told Malay Mail Online.

He was responding to Prime Minister Datuk Seri Najib Razak’s announcement yesterday that the government will table a Bill to amend the LRA in Parliament this October so that civil courts will have precedence in child custody and divorce cases involving those who convert to Islam after marriage.

Najib said that the amendment to the law would iron out the problem of overlapping jurisdiction between the civil and Shariah courts.

On the same note, Musa also demanded that the powers bestowed to the shariah courts under the Ninth Schedule, List 2, Item 1 of the Federal Constitution, which gives the shariah courts absolute power on matters relating to the Islam, as well as Section 46(2) of the Islamic Family Law (Federal Territories) Act 1984, must be maintained.

Section 46(2) of the Islamic Family Law Act states that the “conversion to Islam by either party to a non-Muslim marriage shall not by itself operate to dissolve the marriage unless and until so confirmed by the Court”.

Musa said Section 46(2) is needed to safeguard the interest of Muslim convert spouses.

“This is because under this law, the shariah courts can declare an annulment of the Muslim convert’s previous marriage, if the process in the civil courts drag on.

“This particularly in cases where the non-converting spouse refuses to file the petition to annul their civil union, dragging the case for too long, while the Muslim convert spouse has done everything in his or her power to have the marriage annulled,” Musa added.

However, Musa said that a Muslim convert must first prove that he or she has made all attempts to have the civil marriage dissolved before seeking the help of the shariah courts to annul the marriage.

“This is important as the marriage cannot be considered dissolved merely because one spouse converted to Islam, unless that is affirmed by the shariah courts,” he said adding that shariah courts are only powered to declare on the status of the marriage whereas all other matters relating to the civil union, such as properties, custody of children, alimony and several others fall under the purview of the civil courts.

The Cabinet decided in 2009 to bar the unilateral conversion of children, but the proposed legal amendments to enforce this were later shelved following the intervention from the Conference of Rulers hours before they could be tabled in Parliament.

Putrajaya had then proposed amendments to the Law Reform (Marriage and Divorce) Act 1976, the Islamic Family Law (Federal Territories) Act 1984 and the Administration of Islamic Law (Federal Territories) Act 1993 to ensure that issues like child support and custody would be determined by the court in which the marriage had been registered in, regardless if one spouse embraces another religion later on.

Then de facto law minister Nancy Shukri told Malay Mail Online last January that the government was planning amendments to those three laws and had hoped they would be tabled soon.