Family Law and Practices
by Sherry Sherriff
(A) Puan Nora
(1) Background
Puan Nora has sought assistance from Sisters in Islam for her case.
Puan Nora left her husband in October 2020 after eight years of marriage. She was only able to get her divorce in March 2021 after delays in court proceedings as a result of the COVID-19 pandemic. Her husband had threatened that he would grant the divorce only on condition that she did not claim for matrimonial property (harta sepencarian) and child maintenance (nafkah anak); if she did, he would seek custody of the children. Desperate to be divorced, and to not lose custody of her children, she agreed to the condition. The divorce was conducted through the pronouncement of talaq by her husband in court.
During the divorce proceedings in court, the Judge did not raise the issue of her rights in a divorce, such as the rights to custody of her children, and maintenance for herself and her children. She therefore did not claim the rights available to her upon divorce — maintenance for her during the iddah period upon divorce, maintenance for her children, and her matrimonial property rights.
She has since found out that her former husband has remarried, with a substantial amount of money given as a dowry to his new wife. Puan Nora, on the other hand, now receives even less maintenance for her three young children — reduced from RM800 during marriage to between RM600 and RM700 after the divorce.
She wants to claim her rights but as at the time of writing, she has not been able to file claims as the Syariah courts have not been fully operational due to the pandemic.
(2) Situational Analysis
Puan Nora’s account reveals the unequal power relations that are evident in many situations of marital breakdown, and the significant barriers women face in claiming their rights when a marriage comes to an end. The main issues are as follows:
(a) It is very common that women are not aware of their rights in a divorce, thus they are not aware of their ability to claim for maintenance and marital property, among others. This makes them vulnerable to situations such as that faced by Puan Nora where she was coerced into giving up her rights;
(b) Women are often very concerned when their husbands threaten to challenge the divorce and/or custody of the children. Frequently, the main reason is that the wife does not have the financial capacity to afford a protracted court case. Legal fees for divorce claims can accumulate very rapidly, especially when rights are heavily contested by the husband. Legal aid is available, but is limited. It is often the case that the husband is in a much stronger financial position than the wife. The wife may even be unemployed, having been the homemaker during the marriage. This creates a severe degree of inequality in the ability of the parties to access the rights accorded by the law. It also renders the system open to abuse, such as when the husband files repeated claims that require the wife to respond. This uneven playing field acts as a serious barrier for women to access the rights accorded to them by the law and to obtain justice;
(c) Women also feel that under Islamic law, men have the unilateral right to divorce even without giving any reason, and do not have obligations to the women thereafter. The core issue lies in the fact that divorce is in the hands of the husband through talaq — therefore the wife feels that she needs to give in, or conform, in order to be granted a divorce. While talaq is a unilateral right for a man to divorce his wife under the current law, he is still obligated to provide for the wife in the immediate term, and for the children until they reach adulthood. Note that in other Muslim jurisdictions, this unilateral right has been curtailed and controlled in order to ensure greater equality in divorce proceedings and to avoid abusive use of unilateral divorces; and
(d) A serious concern affecting too many single mothers is that the maintenance for children is often not provided, or is insufficient. In many cases, it is not because the former husband cannot afford it but because he is simply irresponsible in carrying out his duties concerning the care of their children. Enforcement of non-payment of children’s maintenance is weak. In many cases, it requires the divorced woman to institute a new legal proceeding, incurring yet further costs. This puts severe financial pressure on her, especially when she is in the course of rebuilding her life, as is often the case — finding new accommodation, a new job, caring for her young children as a single mother, and so on. Many mothers give up their right to maintenance as they are unable to spare the time or money to claim this right.
(3) Status of State Interventions
Lack of awareness of a woman’s rights in a divorce is often a serious issue. Under the Islamic family laws of Malaysia, women are accorded a range of rights that cannot be negotiated away.
These rights include the following:
(a) Section 47(f) of the Islamic Family Law (Federal Territory) Act 1984 (IFL FT) requires that in a divorce by talaq, either party may present to the Court a declaration on “the terms of any agreement regarding maintenance and habitation of the wife and the children of the marriage, if any, the care and custody of the children of the marriage, if any, and the division of any assets acquired through the joint effort of the parties, if any, or, where no such agreement has been reached, the applicant’s proposals regarding those matters”;
(b) It should be noted that a divorce may be granted, notwithstanding that the terms and conditions mentioned above are not met;
(c) The Court may order the payment of maintenance during the iddah period for the wife under sections 59 and 65 of the IFL FT. This maintenance is usually paid for the period of three months after divorce. The Court may also order for the payment of arrears in maintenance and interim maintenance under sections 69 and 70 of the IFL FT;
(d) Furthermore, section 71 provides that “[a] divorced woman is entitled to stay in the home where she used to live when she was married, for so long as the husband is not able to get other suitable accommodation for her” — at least for the iddah period;
(e) Section 58 of the IFL FT states that a woman can claim for matrimonial property, that is, the Court has the power “… to order the division between the parties of any assets acquired by them during the marriage by their joint efforts or the sale of any such assets and the division between the parties of the proceeds of sale”. Contributions made by each party in money, property, or labour towards the acquisition of the assets will be taken into account — this includes caring for the children and home, and other indirect contributions made by the wife. The needs of the minor children also have to be considered by the Court. However, again, in many cases women are not aware that indirect contributions are also taken into account. They think that they do not have any rights to the matrimonial property as they did not pay for the house;
(f) A husband also has a duty under section 72 to provide maintenance for his children, even where the custody of the children is with the mother, “… either by providing them with such accommodation, clothing, food, medical attention, and education …”. His next of kin — as determined by Hukum Syarak — is liable to pay for this maintenance should he be unable to do so for any reason;
(g) The amount in arrears for child maintenance cannot be quantified as there is no data collected holistically across the country, but limited statistics are provided by the Syariah and civil courts. According to those statistics, there were 12,983 cases on nafkah anak in the Syariah courts between 2013 and 2017; and
(h) Year after year, statistics from Telenisa, Sisters in Islam’s free legal advice service, identify arrears in child maintenance payments as one of the main issues faced by its clients. In 2018, 52% of the cases handled by Telenisa were in relation to obtaining maintenance orders, non-payment of maintenance, or arrears in payments. In 2019, the percentage decreased to 41%.
Non-payment of maintenance relates to poverty of single mother households. Whilst there is no national data to demonstrate this, a recent report by the United Nations Children’s Fund (UNICEF) and the United Nations Population Fund (UNFPA) on low-income urban families entitled “Families Living on the Edge (Issue 2)”[1] shows that households headed by women are much more vulnerable to economic shocks such as those faced during this pandemic, namely:
(a) The unemployment rate for female heads of households is relatively high compared to the national average, with 20% of their household members not working;
(b) About 45% of workers do not have an account with the Employment Provident Fund (EPF) or the Social Security Organisation (SOCSO), and the figure is higher for working female heads of households, at 51%;
(c) 68% of the households interviewed have no savings, with the female-headed households faring even worse; and
(d) 37% of the households reported that they struggle to purchase enough food for their families, while 35% are unable to pay their bills on time. The consistent and persistent hardship is more pronounced among female-headed households.
The General Recommendation by the Committee on the Elimination of Discrimination against Women (CEDAW Committee) on article 16 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)[2] states:
4. The economic consequences for women of marriage, divorce, separation and death have been of growing concern to the Committee. Research conducted in some countries has found that while men usually experience smaller, if not minimal, income losses after divorce and/or separation, many women experience a substantial decline in household income and increased dependence on social welfare, where it is available. Throughout the world, female-headed households are the most likely to be poor. Their status is inevitably affected by global developments such as the market economy and its crises; women’s increasing entry into the paid workforce and their concentration in low-paying jobs; persistent income inequality within and between States; growth in divorce rates and in de facto unions; the reform of social security systems or the launching of new ones; and above all, the persistence of women’s poverty. Despite women’s contributions to the economic well-being of the family, their economic inferiority permeates all stages of family relationships, often owing to their responsibility for dependants.
. . .
45. The guiding principle should be that the economic advantages and disadvantages related to the relationship and its dissolution should be borne equally by both parties. The division of roles and functions during the spouses’ life together should not result in detrimental economic consequences for either party.
46. States parties are obligated to provide, upon divorce and/or separation, for equality between the parties in the division of all the property accumulated during the marriage. States parties should recognize the value of indirect, including non-financial, contributions with regard to the acquisition of property during the marriage.
. . .
48. States parties should undertake research and policy studies on women’s economic status within the family and upon the dissolution of family relationships and publish the results in accessible forms.
(4) Recommendations
In reality, many women fail to claim their rights as the legal process is complex, expensive, and often protracted. The court system does not provide options whereby the process would be more user-friendly to women who, as it is, are going through severe instability in their lives and the lives of their children. Bearing in mind that many women are not well-advised on their rights as they may not be represented by a lawyer, it should be the practice that a judge informs each woman of her ability to claim such rights.
This was not done in Puan Nora’s case. As such, she was not aware that she could claim such rights until she sought legal advice from Telenisa. This is a clear case of form over substance. Whilst the law provides rights, these rights are not realisable in practice, given the realities of these women’s lives. These realities must be taken seriously. It is not enough for authorities to assert that women already have rights. Inequality rears its ugly head in situations such as these where rights under the law are in effect useless if women cannot successfully claim them.
CEDAW requires the adoption of substantive equality, which can only be achieved when the States parties examine the application and effects of laws and policies, and ensure that they go towards achieving real equality, namely equality in fact (de facto equality), taking into account women’s disadvantage or exclusion.
In such cases:
(a) Courts should consider providing clear guidance to women on how to take straightforward cases to court: how to file the cases, the processes and procedures involved, the evidence required, etc. Sisters in Islam works with some lawyers who provide this guidance to its clients, so that the clients are able to take on their own cases, and thus not incur huge legal costs. This, however, would be limited to only uncomplicated cases. Some jurisdictions (such as the USA) have help centres to support women in this regard;
(b) The judge should ensure that the women understand their rights in a divorce, particularly where they are not represented by a lawyer; and
(c) The courts and relevant authorities should provide access to information that is clearly presented in language that a layperson can understand, to help ensure that the women are fully apprised of their rights. This approach should take into account that generally, awareness concerning rights in marriage, family, divorce, etc. is not high, across the board.
The issue of maintenance of children (nafkah anak) requires immediate attention from the Government and relevant authorities.
(a) One barrier to access to justice is the inability to obtain legal representation as a result of financial constraints. The Bahagian Sokongan Keluarga (Family Support Division) was established by the Jabatan Kehakiman Syariah Malaysia (Department of Syariah Judiciary Malaysia) as a Government initiative to recover unpaid maintenance. However, statistics are scarce and the success rate of this initiative is unknown. Awareness of this service is low.
(b) Initiatives by other jurisdictions provide options that the Government can utilise to reverse this problem, such as the establishment of a national-level agency to ensure that it is mandatory for maintenance to be paid after the dissolution of marriage. There are powers available to the courts — such as taking security of assets, or requiring a portion of salary or Employees Provident Fund (EPF) monies be used for maintenance payments — to ensure that maintenance is paid. These powers should be used more widely and strictly on errant fathers.
(B) Priscilla Collar, and Jennifer (pseudonym)
(1) Background
We heard from two witnesses on their struggles to obtain Malaysian citizenship — Priscilla Collar for her two daughters, and Jennifer for herself — due to a discriminatory law that prevents Malaysian women from conferring their Malaysian citizenship to their children who are born abroad.
Priscilla, a Malaysian, was married to a foreign citizen. She returned to Malaysia upon separating from her husband, having given birth to two daughters during her six years abroad. Since 2015, she has been applying to the Ministry of Home Affairs (MOHA) for her daughters to be granted Malaysian citizenship, but without success. Her daughters were initially in Malaysia on tourist visas, which essentially meant that they had to exit and re-enter the country every 90 days in order to acquire new visas. They now hold student visas, which requires annual renewal.
Jennifer is a daughter of a Malaysian mother and a foreign father, and was born abroad. She has been unable to obtain Malaysian citizenship despite her mother’s attempts since 2016, and is forced to resort to pursuing further studies in Malaysia in order to have a student visa that permits her to reside in Malaysia until the visa expires.
As a result, both Priscilla and Jennifer have to incur high financial costs in order to maintain the student visas and thus enable legal presence in this country. Priscilla has to enrol her daughters in international schools, and Jennifer is enrolled in a Master’s degree programme. They feel very vulnerable and insecure, and are in constant fear of their families being torn apart.
(2) Situational Analysis
The Federal Constitution’s article 14(1)(b) grants Malaysian men the right to confer citizenship on their children born overseas, by operation of law. A Malaysian man can do so even if the child is born abroad to a foreign spouse — all he has to do is register the birth, and it takes about three days to complete the formalities. Malaysian mothers do not have the same right. They have to apply for their children to be granted Malaysian citizenship, under article 15(2) and the Second Schedule of the Federal Constitution. This application process is fraught with inconsistencies and delays, and no guarantees of securing such citizenship. The application process can take longer than two years. It has been known to take more than five years merely to receive a response to the application. If the request is rejected, usually no reasoning is provided by MOHA.
This blatant form of gender inequality is still in the Federal Constitution currently.
Malaysia is one of the only 25 countries in the world that denies women the right to confer nationality on their children on an equal basis as men. Between 2013 and 2018, MOHA rejected 3,715 applications and had 4,959 applications ‘in process’, while only 142 applications were approved, which amounts to an approval rate of 1.61%. This means that over 98% of the citizenship applications submitted by Malaysian mothers did not receive approval during that period. Additionally, between 2018 and September 2019 alone, the Ministry received 2,253 new applications based on article 15(2) of the Federal Constitution.
The COVID-19 pandemic has further exacerbated the impact of biased Malaysian citizenship laws on Malaysian women and their children. Risk of travelling during the COVID-19 pandemic and closures of borders have resulted in many pregnant Malaysian women having to give birth overseas, thus putting at risk the chances of their children being granted Malaysian citizenship. Many non-citizen children had to contend with not being able to reunite with their families in Malaysia, amidst the travel restrictions and the closure of Malaysian borders.
The non-citizen children of Malaysian women are at a grave disadvantage when living in Malaysia, as they face unequal access to fundamental rights such as education, healthcare, economic opportunities, or social protection.
(a) Affected Malaysian women living overseas are placed in vulnerable and precarious situations, and may have to live in abusive marriages that include the risk of domestic violence. It is less likely for these women to leave abusive marriages, as they are reliant on their foreign husbands in respect of the legal status of their children.
(b) The children also have limited access to public education. The current system operates in a way that a non-citizen child will fall behind to the extent of approximately two years of education. There is an annual levy of RM120 for primary schools and RM240 for secondary schools. They are also ineligible for support schemes such as the Textbook Loan Scheme, Supplementary Food Programme, and health programmes (dental care and vaccinations), thus adding to the cost of their education.
(c) The children are designated as foreigners at public healthcare facilities. Consequently, they have to pay the higher rates applicable to foreigners in order to access the services, which adds to cost pressures.
(d) Children above the age of 21 can no longer apply for citizenship by ‘registration’ and are relegated to the status of mere tourists. This causes families to be separated.
Discriminatory nationality laws are explicitly prohibited in article 9 of CEDAW. Elaborating on article 5 of the Convention, the Global Campaign for Equal Nationality Rights has stated that:
Gender discrimination in nationality laws has its root in an understanding of women’s status as inferior and women’s legal identity as derivative, based on the nationality of the father or spouse, rather than an expression of one’s independent identity as a citizen. Furthermore, women’s inability to equally confer nationality on children is an expression of the state’s position that the father is the natural, primary source of children’s legal identity.[3]
Over and above the impact previously described, CEDAW recognises with concern that unequal nationality laws lead to other human rights abuses such as trafficking of women, discrimination in political and public life (particularly the right to vote), discrimination in employment, difficulty of access to forms of financial credit such as loans, and so on.
(3) Status of State Interventions
In 2012, Foreign Spouses Support Group, Malaysia (FSSG) submitted applications for citizenship to the Ministry of Women, Family and Community Development (MWFCD), without success. FSSG then became more active in its advocacy since 2018. A national consultation was held, and was attended by MWFCD. However, MOHA did not participate in the consultation. Awareness was built around the issue, which resulted in some positive statements from the then-Deputy Minister of MWFCD, Hannah Yeoh. However, most of the applications remained unresolved.
As a result of the poor response from the Government, a group of impacted mothers decided to challenge the provision in the Federal Constitution, claiming that it is unconstitutional on the basis of gender discrimination. On 18 December 2020, the Association of Family Support & Welfare Selangor & KL (Family Frontiers) along with six affected Malaysian mothers filed a case at the Kuala Lumpur High Court on the matter of the right of Malaysian mothers (who are married to non-citizens) to confer citizenship on their overseas-born children on an equal basis as Malaysian fathers.
The High Court ruled in September 2021 that article 4(1)(b) of the Federal Constitution together with the Second Schedule, part II, section 1(b), pertaining to citizenship rights, must be read in harmony with article 8(2) of the Federal Constitution, which prohibits discrimination on the basis of gender. High Court Judge Akhtar Tahir ruled that the word “father” must therefore be read to include a mother, and that the children are entitled to citizenship by operation of law. This was indeed a great victory towards equality in nationality laws.
At the time of writing, the Government is appealing against the High Court decision.
(4) Recommendations
The Government must respect the dignity of women and accord them equal rights, as citizens of Malaysia. In particular, we call on the Government to immediately table a constitutional amendment to grant Malaysian women an equal right to confer citizenship to their overseas-born children by ‘operation of law’, in the best interest of the children and the families, and the well-being of their Malaysian mothers. We recommend that temporary special measures be established in the interim, to provide immediate relief to Malaysian mothers and their children.
(C) Kolon (pseudonym), and Alya (pseudonym)
Kolon:
(1) Abandoned by husband for the last one year and seven months;
(2) Husband cannot be traced; and
(3) Mahkamah Anak Negeri will not grant divorce, and told Kolon to locate him.
Alya:
(1) Received threats, and was subjected to acts of violence from husband;
(2) Alya applied to Mahkamah Anak Negeri for maintenance, accommodation, and to be treated fairly; and
(3) Maintenance was granted, but husband only pays 20%.
(D) Issues for Advocacy
(1) Issue of maintenance to be taken up with the Syariah court in the case of Puan Nora. This issue is prevalent across the board, affecting Muslims and non-Muslims. Obviously a holistic approach is required to ensure fathers meet their responsibilities towards their children.
(2) Issue of divorce, where a husband cannot be traced — what does the law say?
(3) Issues of family law where the native courts are concerned — recommendation is for an in-depth discussion, to better understand the approach taken by the courts / judges towards women’s situations in divorce, custody, maintenance, matrimonial property, etc.
Endnotes
[1] “Families on the Edge”. United Nations Children's Fund, Malaysia and the United Nations Population Fund. October 2020. www.unicef.org/malaysia/media/1576/file/Families%20on%20edge%20part%202.pdf.
[2] “General recommendation on article 16 of the Convention on the Elimination of All Forms of Discrimination against Women (Economic consequences of marriage, family relations and their dissolution)”. United Nations. CEDAW/C/GC/29. 30 October 2013. https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW%2fC%2fGC%2f29&Lang=en.
[3] “Gender Discriminatoin [sic] in Nationality Laws and the Convention on the Elimination of All Forms of Discrimination against Women”. Global Campaign for Equal Nationality Rights. https://equalnationalityrights.org/images/zdocs/GDNL-and-CEDAW-Pamphlet.pdf.