Right to Equality in Family Law and Practices
by Zainah Anwar
Based on witness testimonies by Puan Nora, Alya (pseudonym) and Kolon (pseudonym)
1.1 The long-standing difficulties Malaysian women face in accessing their rights under family law must be addressed immediately. Be it getting a divorce in the Syariah court system or obtaining adequate maintenance for their children in all three court systems — civil, Syariah or customary courts — the testimonies of Puan Nora, Kolon and Alya at this Women’s Tribunal highlight the myriad of challenges women like them face due to discriminatory family laws.
1.2 Such women give up their rights or submit to threats and pressure simply to get out of a bad marriage faster. They ultimately feel that it is too emotionally draining and a waste of their time to pursue their rights granted under the law within a patriarchal culture and what they see as a gender-biased, complicated, and costly court processes.
1.3 For Muslim women in particular, the belief that Islam does not regard them as equal to men continues to be used to justify why law reform cannot take place to end discrimination against Muslim women, including in the realm of the family. The rise of political Islam in Malaysia saw one of the most progressive Muslim family laws in the world in the 1980s, regress in the 1990s onwards with amendments that chiselled away at the rights women had gained, and the introduction of new provisions that further discriminated against them.
1.4 As a nation committed to gender equality, Malaysia needs to pay immediate attention to discriminatory family laws because research shows that this is a feature of many countries at the bottom of various gender equality surveys. More critically, such laws have led to gender gaps in educational attainment, economic participation and opportunity, health and survival, and political empowerment.
1.5 For Malaysia, an upper middle-income country, to be continually in the bottom half of the annual World Economic Forum Gender Gap survey along with many other Muslim nations is embarrassing. It is time that the Government takes immediate steps to reform the substance and administration of the country’s family laws to ensure justice for all and to promote family wellbeing. Without equality in the family, there can be no equality in public life, a result that will leave Malaysia’s commitment to gender equality remaining as mere lip service.
2.1 Issues of concern
2.1.1 The issue of non-payment and inadequacy of child support are common problems faced by women in the civil, Syariah and customary legal systems.
The three Women’s Tribunal witnesses and their advocates all complained of frustrations in trying to claim maintenance for children due to the numerous hurdles in their way. These include:
complicated legal procedures;
lengthy and costly court processes, including cost of enforcement proceedings and delays in disposal of matters;
the burden on the woman to prove the father’s income and assets;
the inadequate maintenance awarded;
the absence of court guidelines to assess what constitutes fair and adequate maintenance for children;
fathers continually defaulting on maintenance payments and wilfully disregarding court orders that result in an endless cycle of expensive court enforcement proceedings;
the lack of enforcement, including delays in serving court orders;
the burden placed on mothers to locate their defaulting ex-husbands; and
court bias towards fathers, including ready acceptance of excuses for inadequate or non-payment.
2.1.2 The establishment of a Family Support Division (Bahagian Sokongan Keluarga, BSK) by the Department of Syariah Judiciary Malaysia (Jabatan Kehakiman Syariah Malaysia, JKSM) to help obtain and enforce court maintenance orders, has gone some way in assisting mothers to claim for maintenance due to their children. Nevertheless, research shows mixed results in outcomes and continuing challenges, including the lack of cooperation by fathers and government agencies, and a lack of legal officers and bailiffs to undertake the work. Execution of court maintenance orders remains a challenge in all court systems, including in the Native Court system in Sabah and Sarawak, with witnesses reporting similar challenges in getting redress for their husbands’ failure to maintain the children.
2.1.3 In general, there is a gap in research and information on the issue of marriage and family cases in the Native Court system. However, in addition to the challenges listed above (see 2.1.1), Kolon and Alya, the two indigenous women witnesses from Sabah involved in customary marriages, also reported issues of domestic violence and rape within marriage, illegal customary marriage at age 15, abandonment, non-maintenance, unresolved court claims for maintenance, and unfair treatment in a polygamous marriage.
2.1.4 In the Muslim community, the common belief that men are superior to women and that divorce is in the hands of men (“cerai di tapak tangan suami” in Malay) have led to a widespread belief among women that they have no rights in Islam. Therefore they should just submit to their husband’s demands and threats in order to get out of a bad marriage. This power dynamics within a marital relationship, plus gender bias in the law and in court processes, disempower women and affect their access to justice.
2.1.5 Such was the experience of Puan Nora who did not know that she could have initiated divorce on several grounds, and that she had a right to a share of the matrimonial assets by virtue of her role as wife and mother. Instead, when her husband said he would only divorce her and give her custody of the children if she gave up all her financial rights and the children’s right to maintenance, she submitted, even though she felt it unfair. He had also threatened that if she changed her mind after the divorce and decide to claim for child maintenance and her share of the matrimonial assets, he would file a claim for custody of their three children.
2.1.6 The RM600-RM700 that her husband contributes monthly as child maintenance is barely sufficient to cover the cost of bringing up three growing children, aged eight, six and two. Even during the nine-year marriage, he provided only RM800 a month for all household and children’s expenses, which was never enough to maintain a family of five. So she had to earn extra money to pay for various bills. The insufficient child maintenance awarded is not always due to the husband’s lack of financial resources — like in this case — but often times due to gender bias in the court where judges favour a husband’s reasoning and award an amount that appears arbitrary rather than represents a fair assessment of the monthly cost of bringing up a child and the husband’s ability to pay.
2.1.7 As well, women’s lack of financial resources to fight for their rights in court means women like Puan Nora, who is a full-time homemaker, face additional obstacles to hire a lawyer and meet court and other related costs in filing various claims. Even though Puan Nora was informed she could represent herself to save costs, she felt this would disadvantage her as her husband came from a family of means and would be better represented by a lawyer.
2.2 Rights violated/standards not adhered to/failure of duty bearers (state)
2.2.1 The right to equality under the law, right to non-discrimination, access to justice, right to maintenance, to arrears in maintenance, right to the matrimonial home and to a share of the matrimonial assets are common problems faced by our witnesses and other women in relation to discriminatory family laws and practices, especially in the Syariah and customary systems of Sabah and Sarawak.
2.2.2 Among the provisions of the Islamic Family Law 1984 (Federal Territories) that have been violated include:
Section 58, which enables a woman to claim her share of the matrimonial assets acquired during the marriage by their joint efforts or the sale of any such assets. Contributions made by each party in money, property, or labour towards acquiring the assets shall be taken into account, and this includes caring for the children and home, and other indirect contributions made by the wife. The needs of the minor children should also be considered by the court.
Sections 59 and 65, which provide for iddah (wife’s maintenance for three months after divorce), and sections 69 and 70 provide for interim maintenance while cases are being decided.
Section 72, which places responsibility on the husband to provide maintenance for his children, to cover accommodation, clothing, food, medical attention, and education.
2.2.3 Additionally, section 47(f) requires that in a divorce by talaq, either party may present to the court an agreement or a proposal on the maintenance and habitation of the wife and the children, the care and custody of the children, and the division of any assets acquired through the joint effort of the parties. Divorce, however, can still be granted even if such agreement is not concluded.
2.2.4 Malaysia has also fallen short of its obligations under the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Among the key provisions, it has not fully complied with are article 2 (adoption of laws to prohibit discrimination against women); article 5 (modify social and cultural patterns to eliminate prejudices and practices based on gender stereotypes); and article 16 (on the right if, when and whom to marry, which covers the freedom to choose one’s spouse, rights and responsibilities during marriage and at its dissolution; right to decide on the number and spacing of children; right to choose a family name, profession or occupation).
2.2.5 When Malaysia ratified the CEDAW Convention, it also entered reservations to some articles, including article 16. While the Government has done well to remove some of these initial reservations, its insistence on maintaining reservations to articles 16(1a) equality to enter into marriage; 16(1c) same rights during marriage and at its dissolution; 16(1f) same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children; and 16(1g) same personal rights of husbands and wives, are significant. Reserved in the name of Islam, these allow the Government to evade compliance with its obligations under CEDAW.
2.2.6 While the trajectory of law reform in the country has moved forward to recognise equality in the family for women of other faiths, for Muslim women, the reverse is happening. This deep-seated misogynistic attitude thus denies these women access to justice even when the law grants them rights.
2.3 Victim impact
2.3.1 Many women like Puan Nora give up further education and a career to be a full-time homemaker and mother. They thus lose out in terms of financial independence. When their marriage breaks down, women’s lack of financial resources to fight for their rights in court means they are unable to hire a lawyer and meet court and other related costs in filing various claims. They are discriminated and disadvantaged compared to their husbands who are more likely to have a regular income and can hire the top lawyers that the wives cannot afford. In such an instance, the outcome of a legal court case cannot be just.
2.3.2 This lack of economic means is particularly hard on women who are daily rated or low-waged workers. According to data from the legal clinic offered by Sisters in Islam, for such women, each day taken off work to deal with court procedure means a day without income. In the end they give up as it is too costly — in terms of money, time and emotional toll — to file repeated claims for arrears in maintenance from irresponsible fathers. It is no surprise that research conducted in several countries found that women often plunge into poverty because of a substantial decline in household income upon divorce, compared to men who incur smaller, if not minimal, income losses.
2.3.3 Such challenges faced by women not only constitute a denial of their legal rights and access to justice and impacts on them adversely, but also results in the denial of their child’s right to maintenance, which can seriously undermine their wellbeing.
The continuing discrimination against women in law and practice must stop. The Women’s Tribunal recommends that the Government undertakes the following actions to advance family wellbeing for everyone in the country:
Short term (within one year)
(a) Complying with CEDAW Concluding Observations on article 16
3.1 Take immediate steps to comply with the 2018 CEDAW Concluding Observations on article 16 for Malaysia, which, among others, call on the Government to undertake a comprehensive law reform process to remove the inconsistencies between civil and Syariah law to ensure Muslim women enjoy rights to equality and non-discrimination in all family and marriage matters. These include raising the minimum age of marriage to 18 for women; as well as ensuring equal rights to enter into marriage and divorce, to maintenance, custody and guardianship of children, and to inheritance.
3.2 This reform process to end discrimination in family law should also cover customary laws of Sabah and Sarawak, including establishing a minimum age of marriage at 18.
(b) Establish a Family Court Legal Service Centre
3.3 This is critical to address the lack of knowledge on existing laws and procedures, and the options available for women. The Centre should be staffed by trained personnel and provide free services — including legal advice, information booklets, various case application forms and procedures — to enable parties to navigate the often confusing court processes at a time of conflict and distress.
Medium term (within two to three years)
(c) Establish a fully functioning Family Court system
3.4 This initiative shall apply to civil, Syariah and customary law jurisdictions, to enable family members to resolve disputes through conciliation and mediation, rather than a hostile adversarial court process. There is now a global trend where an approach that includes counselling and mediation is favoured in resolving family disputes. In such systems, over 90 per cent of cases are resolved through mediation, with only a small number of complicated and contentious cases being heard before a judge.
3.5 A Family Court with specialist judges and professional staff such as social workers and marriage counsellors can help couples reach more amicable decisions to promote family wellbeing and protect the best interest of the child. This more reconciliatory approach will particularly help women and children, who are often intimidated by an adversarial process and thus give up their rights due to intimidation, lengthy procedure, and high costs. It will also create a better post-divorce environment where both parties can work towards co-parenting in more reconciliatory ways.
(d) Establish a Federal-level Child Support Agency (CSA)
3.6 The establishment of a Federal-level Child Support Agency (CSA) will assist parents to meet their responsibilities to ensure that every child, within or outside a marriage, is maintained. This is non-negotiable and non-disputable.
3.7 The CSA’s primary task is to assess, review, enforce and arrange for child support payments. Instead of mothers repeatedly going up and down courts to enforce maintenance orders on recalcitrant fathers, it is the task of such an agency to trace and contact non-resident parents to collect and forward maintenance payments, and to retrieve arrears in maintenance as debts to the Government. Payments can be made through direct deductions through salaries or bank accounts or other accounts or funds, seizure of assets, or restrictions from leaving the country. In many countries, the CSA sets punitive measures for non-payment that can include non-renewal of passport, business licence, or driving licence. Fathers should no longer be allowed to get away with their bad behaviour with impunity.
3.8 The CSA should also provide support to women who are still married to obtain maintenance for the family from irresponsible fathers who fail to provide regular or adequate maintenance. This is particularly so in polygamous marriages when fathers either can no longer afford to maintain children in multiple households or just abdicate their responsibilities by wilfully not paying. Under the Islamic Family Law 1984 (Federal Territories), male relatives on the father’s side can be pursued for maintenance when the father defaults. The CSA can help enforce this provision.
 The Sisters in Islam legal clinic data shows that at least 40 per cent — and in some years, over 50 per cent — of the cases it receives annually is on the issue of child maintenance, be it obtaining child maintenance, arrears in maintenance, or non-payment of maintenance.
 This reflects the urgent need for more community-level work to be done for women in Sabah (and Sarawak) and for academics, especially in these two States, to conduct more studies in this area.
 A State Party to CEDAW can enter reservations on certain provisions of the treaty, on grounds that these are incompatible with national laws or customs. Once reserved, it is not bound to uphold these provisions. Importantly, however, these reservations must not be incompatible with the purpose of the Convention and must be temporary.
 In 1995, Malaysia reserved articles 2(f) on laws that discriminate against women; 5(a) on modifying social and cultural patterns to eliminate prejudices and practices based on gender stereotypes; 7(b) on decision-making at all levels of government; 9 on equal citizenship; and 16 on marriage.