What is Islamic Family Law Enactment 2004?

Islamic Family Law Enactment 2004 is Malaysia State Enactment, cited as State Enactment 2004 2004, currently marked in force and first recorded in 2004.

Is Islamic Family Law Enactment 2004 still in force?

Yes — Islamic Family Law Enactment 2004 is currently in force.

When did Islamic Family Law Enactment 2004 take effect?

Islamic Family Law Enactment 2004 was first recorded in 2004.

How many sections does Islamic Family Law Enactment 2004 have?

Islamic Family Law Enactment 2004 contains 137 sections.

Where can I read the official version of Islamic Family Law Enactment 2004?

The official text of Islamic Family Law Enactment 2004 is published at sagc.sabah.gov.my.

Islamic Family Law Enactment 2004

PRELIMINARY

Short title and commencement

Section 1

This Enactment may be cited as the Islamic Family Law Enactment 2004 and shall come into operation on a date to be appointed by the Minister by notification in the Gazette. [01.06.2005]

Section 2

Interpretation

(1)

In this Enactment, unless the context otherwise requires –

“anak dara” means a woman who has not had sexual intercourse, whether she has been married or not;

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“appointed date” means the date appointed under section 1 for the coming into operation of this Enactment;

“baligh” means the age of puberty in accordance with Hukum Syarak;

“Chief Registrar” means a Chief Registrar of Muslim Marriages, Divorces and

Ruju’ appointed under section 28;

“Chief Syar’ie Prosecutor” means the officer appointed under section 30(1) of the Court Enactment;

“Court” means the Syariah Subordinate Court or the Syariah High Court, as the case may be, constituted under section 4 of the Court Enactment;

“Court Enactment” means the Syariah Courts Enactment 2024;

“darar syar’ie” means harm, according to what is normally recognized by Hukum

Syarak, affecting a wife in respect of religion, life, body, mind, dignity, or property;

“Enactment” means the Majlis Ugama Islam Sabah Enactment 2004;

“fasakh” means the annulment of a marriage by reason of any circumstance permitted by Hukum Syarak in accordance with section 53;

“fosterage” means the suckling of a baby up to sufficiency by a woman who is not its natural mother for at least five times during the first two years of its life;

“harta sepencarian” means property jointly acquired by husband and wife during the subsistence of marriage in accordance with the conditions stipulated by Hukum

Syarak;

“Hukum Syarak” means Hukum Syarak according to Mazhab Syafie or according to one of the Mazhab Maliki, Hanafi or Hanbali;

“illegitimate” in relation to a child, means born out of wedlock but not as a result of syubhah intercourse;

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“iqrar” means an admission made by a person, in writing or orally or by gesture, stating that he is under an obligation or liability to another person in respect of some right;

“janda” means a woman who has been married and divorced after consummation of marriage;

”Majlis” means the Majlis Ugama Islam Sabah established under the Majlis Ugama

Islam Negeri Sabah Enactment 2004;

“mas kahwin” means the obligatory marriage payment due under Hukum Syarak by the husband to the wife at the time the marriage is solemnized, whether in the form of money actually paid or acknowledged as a debt with or without security, or in the form of something that, according to Hukum Syarak, is capable of being valued in terms of money;

“mut’ah” means a consolatory gift that is reasonable according to Hukum syarak, given to a divorced wife;

“nasab” means descent based on lawful blood relationship;

“pemberian” means a gift whether in the form of money or things given by a husband to a wife at the time of the marriage;

“Registrar” means the Senior Registrar of Muslim Marriages, Divorces and Ruju’

appointed under section 28, and includes a Registrar, an Assistant Registrar and for the purposes of sections 7, 21 and 22, a juru nikah;

“resident” means permanently living or ordinarily residing in a particular area;

“ruju” means a return to the original marriage state;

“State” includes the Federal Territories of Kuala Lumpur, Labuan dan Putrajaya;

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“Syar’ie Judge” or “Judge” means a Judge of the Syariah Subordinate Court or the

Syariah High Court, as the case may be, appointed under section 9 or subsection 8(1) of the Court Enactment;

“Syar’ie Lawyer” means a person who is admitted under section 32 of the Court

Enactment to be a Syar’ie Lawyer;

“syubhah intercourse” means intercourse performed on erroneous impression that the marriage was valid when in fact the marriage was not valid (fasid) or intercourse by mistake and includes any intercourse not punishable by Had in

Islam;

“ta’liq” means a promise expressed by the husband after the solemnization of marriage in accordance with Hukum Syarak and the provisions of this Enactment;

“thayyib” means a woman who has had sexual intercourse;

“wali Mujbir” means the father or paternal grandfather and above;

“wali Raja” means a wali who is appointed under section 6A, to give away in marriage a woman who has no wali from nasab or in any situation where the rights of wali is transferred to wali Raja in accordance with Hukum Syarak;

“widow” means a woman whose husband has died;

“widower” means a man whose wife has died;

(2)

All words an expressions used in this Enactment and not herein defined but defined in the Interpretation and General Clauses 1963 shall have the meanings assigned thereto to the extent that such meanings do not conflict with Hukum Syarak.

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(3)

For the avoidance of doubt as to the identity or interpretation of the words and expression used in this Enactment that are listed in the Schedule, reference may be made to the Arabic script for those words and expressions shown against them therein.

(4)

The Minister may from time to time amend, delete from or add to the Schedule.

Saving of prerogative

Section 3

Nothing contained in this Enactment shall derogate or affect the prerogative rights and powers of the Yang di-Pertuan Agong as the Head of the religion of Islam in the State of Sabah as declared and set forth in the Laws of the Constitution of the State of Sabah.

Section 4

Application

Save as otherwise expressly provided, this Enactment shall apply to all Muslims living in the State of Sabah and to all Muslims resident in the State of Sabah who are living outside the

State.

Section 5

Criterion for deciding whether a person is a Muslim

If for the purposes of this Enactment any question arises as to whether a person is a

Muslim, that question shall be decided according to the criterion of general reputation, without making any attempt to question the faith, beliefs, conducts, behaviour, character, acts, or omissions of that person.

Subsisting valid marriages deemed to be registered under this Enactment and dissoluble only under this Enactment

Section 6

(1)

Nothing in this Enactment shall affect the validity of any marriage solemnized under any law wheresoever prior to the appointed date.

(2)

Such marriage, if valid under the law under which it was solemnized, shall be deemed to be registered under this Enactment.

(3)

Every such marriage, unless void under the law under which it was solemnized, shall continue until dissolved –

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(a)

by the death of one of the parties;

(b)

by such talaq as may be pronounced under this Enactment;

(c)

by order of a Court of competent jurisdiction; or

(d)

by a declaration of nullity made by a Court of competent jurisdiction.

MARRIAGE

Appointment of wali raja and juru nikah

Section 6A

(2)

The Yang di-Pertua Negeri may, by notification in the Gazette, appoint any Registrar appointed under subsection 28(2) or any qualified person to be a juru nikah for such area in the

State of Sabah as may be specified in the appointments.

Persons by whom marriages may be solemnized

Section 7

(1)

A marriage in the State of Sabah shall be in accordance with the provisions of this Enactment and shall be solemnized in accordance with Hukum Syarak by –

(a)

the wali in the presence of the Registrar;

(b)

the representative of the wali in the presence and with the permission of the Registrar; or

(c)

the Registrar as the representative of the wali.

(2)

Where a marriage involves a woman who has no wali from nasab, in accordance with Hukum Syarak, the marriage shall be solemnized only by the wali

Raja.

Minimum age for marriage

Section 8

No marriage may be solemnized under this Enactment where either the man is under the age of eighteen or the woman is under the age of sixteen except where the Syar’ie Judge has granted his permission in writing in certain circumstances.

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Section 9

Relationship prohibiting marriage

(1)

No man or woman, as the case may be, shall, on the ground of consanguinity, marry –

(a)

his mother or her father;

(b)

his grandmother or her grandfather upwards whether on the side of his or her father or mother;

(c)

his daughter or her son and his granddaughter or her grandson and his or her descendants;

(d)

his sister or her brother of the same parents, his sister or her brother of the same father, and his sister or her brother of the same mother;

(e)

the daughter of his brother or sister, or the son of her brother or sister and the descendants of the brother or sister;

(f)

his aunt or her uncle on his or her father’s side and her or his ascendants;

and

(g)

his aunt or her uncle on his or her mother’s side and her or his ascendants.

(2)

No man or woman, as the case may be, shall, on the ground of affinity, marry –

(a)

his mother-in-law or her father-in-law and his or her ascendants of his wife;

(b)

his stepmother or her stepfather, being his father’s wife or her mother’s husband;

(c)

his step grandmother or her step grandfather, being the wife of his grandfather or the husband of her grandmother, whether on the side of the father or the mother;

(d)

his daughter-in-law or her son-in-law; and

(e)

his stepdaughter or her stepson and the descendants of a wife or a husband with whom the marriage has been consummated.

(3)

No man or woman, as the case may be, shall, on the ground of fosterage, marry any woman or any man connected with him or her through some act of suckling where, if it

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had been instead an act of procreation, the woman or man would have been within the prohibited degrees of consanguinity or affinity.

(4)

No man shall have two wives at any one time who are so related to each other by consanguinity, affinity, or fosterage which a marriage between them would have been illegal in

Hukum Syarak.

Persons of other religions

Section 10

(1)

No man shall marry a non-Muslim, except a Kitabiyah.

(2)

No woman shall marry a non-Muslim.

Void marriages

Section 11

A marriage shall be void unless all conditions necessary, according to Hukum Syarak for the validity thereof are satisfied.

Section 12

Non-registrable marriages

(1)

A marriage in contravention of this Enactment shall not be registrable under this

Enactment.

(2)

Notwithstanding subsection (1) and without prejudice to subsection 40(2), a marriage which has been solemnized contrary to any provision of this Part but is otherwise valid according to Hukum Syarak may be registered under this Enactment with an order from the Court.

Consent required

Section 13

A marriage shall not be recognized and shall not be registered under this Enactment unless both parties to the marriage have consented thereto, and either –

(a)

the wali of the woman has consented thereto in accordance with Hukum Syarak;

or

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(b)

the Syar’ie Judge having jurisdiction in the place where the woman resides or any person generally or specially authorized in that behalf by the Syar’ie Judge has, after due inquiry in the presence of all parties concerned, granted his consent to the Wali Raja to solemnized in accordance with Hukum Syarak; such consent may be given wherever there is no wali by nasab in accordance with Hukum Syarak available to act or if the wali cannot be found or where the wali refuses his consent without sufficient reason.

Marriage of a woman

Section 14

(1)

No woman shall, during the subsistence of her marriage to a man, be married to any other man.

(2)

Where the woman is a janda –

(a)

subject to paragraph (c), she shall not, at any time prior to the expiry of her period of ‘iddah, which shall be calculated in accordance with Hukum

Syarak, be married to any person other than to the man from whom she was last divorced;

(b)

she shall not be married unless she has produced –

i)

a certificate of divorce lawfully issued under the law for the time being in force;

ii)

a certified copy of the entry relating to her divorce in the appropriate register of divorce; or iii)

a certificate, which may, upon her application, be granted after due inquiry by the Syar’ie Judge having jurisdiction in the place where the application is made, to the effect that she is a janda; and

(c)

if the divorce was by ba-in kubra, that is to say three talaq, she shall not be remarried to her previous husband, unless she has been lawfully married to some other person and the marriage has been consummated and later lawfully dissolved and the period of ‘iddah has expired.

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(3)

If the woman alleges she was divorced before the marriage had been consummated, she shall not during the ordinary period of ‘iddah for a divorce be married to any person other than her previous husband, except with the permission of the Syar’ie Judge having jurisdiction in the place where she resides.

(4)

Where the woman is a widow –

(a)

she shall not be married to any person at any time prior to the expiration of the period of ‘iddah, which shall be calculated in accordance with Hukum

Syarak; and

(b)

she shall not be married unless she has produced a certificate of the death of the late husband or otherwise proved his death.

Betrothal

Section 15

If any person has, either orally or in writing, and either personally or through an intermediary, entered into a betrothal in accordance with Hukum Syarak, and subsequently refuses without lawful reason to marry the other party, the other party being willing to marry, the party in default shall be liable to return the betrothal gifts, if any, or the value thereof and to pay whatever moneys have been expended in good faith by or for the other party in preparation for the marriage, and the same be recovered by action in the Court.

Preliminaries to a Marriage

Section 16

Application for permission to marry

(1)

Whenever it is desired to solemnize a marriage in the State of Sabah each of the parties to the intended marriage shall apply in the prescribed form for permission to marry to the

Registrar of the area in which the woman is resident.

(2)

If the man is resident in an area different from that of the woman or is resident in any State, his application shall bear or be accompanied by a statement of the Registrar of such area or by the proper authority of the State, as the case may be, to the effect that as far as he has been able to ascertain the matters stated in the application are true.

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(3)

The application of each party must be delivered to the Registrar at least seven days before the proposed date of marriage, but the Registrar may allow a shorter period in any particular case.

(4)

The applications of the parties shall be treated as a joint application.

Issue of permission to marry

Section 17

Subject to section 18, the Registrar, on being satisfied of the truth of the matters stated in the application, of the legality of the intended marriage, and, where the man is already married, that the permission required by section 23 has been granted, shall, at any time after the application and upon payment of the prescribed fee, issue to the applicants his permission to marry in the prescribed form.

Section 18

Reference to an action by Syar’ie Judge

(1)

In any of the following cases, that is to say –

(a)

where either of the parties to the intended marriage is below the age specified in section 8;

(b)

where the woman is a janda to whom subsection 14 (3) applies; or

(c)

where the woman has no wali from nasab, according to Hukum Syarak, the Registrar shall, instead of acting under section 17, refer the application to the Syar’ie

Judge having jurisdiction in the place where the woman resides.

(2)

The Syar’ie Judge on being satisfied of the truth of the matters stated in the application and the legality of the intended marriage and that the case is one that merits the giving of permission for the purposes of section 8, or permission for the purposes of subsection 14 (3), or his consent to the marriage being solemnized by wali Raja for the purposes of paragraph 13(b), as the case may be, shall, at any time after reference of the application to him and upon payment of the prescribed fee, issue to the applicants his permission to marry in the prescribed form.

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Permission necessary before solemnization

Section 19

No marriage shall be solemnized unless permission to marry has been given –

(a)

by the Registrar under section 17 or by the Syar’ie Judge under section 18, where the marriage involves a woman resident in the State of Sabah; or

(b)

by the proper authority of a State, where the marriage involves a woman resident in that State.

Place of marriage

Section 20

(1)

No marriage shall be solemnized except in the area in which the woman who intends to marry resides.

(2)

Notwithstanding subsection (1), a marriage may be solemnized in an area other than where the woman resides if -

(a)

in a case where the woman resides in the State of Sabah, the Registrar or

Syar’ie Judge giving permission to marry under section 17 or 18 gives permission for t he marriage to be solemnized in the area other than where the woman resides; or

(b)

in a case where the woman resides in a State, a permission to marry and a permission for the marriage to be solemnized in another area have been given by the proper authority of that State.

(3)

A permission under subsection (2) may be expressed in the permission to marry given under section 17 or 18.

Mas kahwin and pemberian

Section 21

(1)

The mas kahwin shall ordinarily be paid by the man or his representative to the woman or her representative in the presence of the person solemnizing the marriage and at least two other witnesses.

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(2)

The Registrar shall, in respect of every marriage to be registered by him, ascertain and record –

(a)

the value and other particulars of the mas kahwin;

(b)

the value and other particulars of any pemberian;

(c)

the value and other particulars of any part of the mas kahwin or pemberian or both that was promised but not paid at the time of the solemnization of the marriage, and the promised date of payment; and

(d)

particulars of any security given for the payment of any mas kahwin or pemberian.

Entry in the Marriage Register

Section 22

(1)

Immediately after the solemnization of a marriage, the Registrar shall enter the prescribed particulars and the prescribed or other ta’liq of the marriage in the Marriage Register.

(2)

The entry shall be attested to by the parties to the marriage, by the wali, and by two witnesses other than the Registrar, present at the time the marriage is solemnized.

(3)

The entry shall then be signed by the Registrar.

Polygamy

Section 23

(1)

No man during the subsistence of a marriage shall, except with the prior permission in writing of the Court, contract another marriage with another woman.

(2)

No marriage contracted without the permission under subsection (1) shall be registered under this Enactment unless the Court is satisfied that the marriage is valid according to Hukum Syarak and the Court has ordered the marriage to be registered subject to section 124.

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(3)

Subsection (1) applies to the marriage in the State of Sabah of a man who is resident within or outside the State of Sabah and to the marriage outside the State of Sabah of a man resident in the State of Sabah.

(4)

An application for permission shall be submitted to the Court in the prescribed manner and shall be accompanied by an iqrar stating the grounds on which the proposed marriage is alleged to be just or necessary, the present income of the applicant, particulars of his commitments and his ascertainable financial obligations and liabilities, the number of his dependants, including persons who would be his dependants as a result of the proposed marriage, and whether the consent or views of the existing wife or wives on the proposed marriage have been obtained.

(5)

On receipt of the application, the Court shall summon the applicant, his existing wife or wives, the woman to be wedded, the wali of the woman to be wedded, if any, and other persons who in the opinion of the Court may provide information relating to the proposed marriage to be present at the hearing of the application, which shall be in camera, and the Court may grant the permission applied for if satisfied –

(a)

that the proposed marriage is just or necessary, having regard to, among others, the following circumstances, that is to say, sterility, physical infirmity, physical unfitness for conjugal relations, wilful avoidance of an order for restitution of conjugal rights, or insanity on the part of the existing wife or wives;

(b)

that the applicant has such means as to enable him to support, as required by Hukum Syarak, all his wives and dependants including persons who would be his dependants as a result of the proposed marriage;

(c)

that the applicant would be able to accord fair treatment to all his wives as required by Hukum Syarak; and

(d)

that the proposed marriage would not cause darar syar’ie to the existing wife or wives.

(6)

A copy of the application under subsection (4) and of the iqrar required by that subsection shall be served together with the summons on each existing wife and the woman to be wedded.

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(7)

Any party aggrieved by or dissatisfied with any decision of the Court may appeal against the decision in the manner provided in the Syariah Civil Procedure Enactment 2004.

(8)

Any person who contracts a marriage in contravention of subsection (1) shall pay immediately the entire amount of the mas kahwin and pemberian due to the existing wife or wives, which amount if not so paid, shall be recoverable as a debt.

(9)

The procedure for solemnization and registration of a marriage under this section shall in all respects be similar in all respects to that applicable to other marriages solemnized and registered in the State of Sabah under this Enactment.

(10)

Every Court that grants the permission or orders the marriage to be registered under this section shall have the power on the application by any party to the marriage –

(a)

to require a man to pay maintenance to his existing wife or wives; or

(b)

to order the division between the parties of the marriage of any assets acquired by them during the marriage by their joint efforts or the sale of any such assets and the division of the proceeds of the sale.

Solemnization of marriages in Malaysian Embassies, etc., abroad

Section 24

(1)

Subject to subsection (2), a marriage may be solemnized in accordance with Hukum

Syarak by the Registrar appointed under subsection 28 (3) at the Malaysian Embassy, High

Commission, or Consulate in any country that has not notified the Government of Malaysia of its objection to solemnization of marriages at such Embassy, High Commission,or Consulate.

(2)

Before solemnizing a marriage under this section, the Registrar shall be satisfied

–

(a)

that one or both of the parties to the marriage are residents of the State of

Sabah;

(b)

that each party has the capacity to marry according to Hukum Syarak and this Enactment; and

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(c)

that, where either party is not a resident of the State of Sabah, the proposed marriage, if solemnized, will be regarded as valid in the place where that party is resident.

(3)

The procedure for the solemnization and registration of a marriage under this section shall be similar in all respects to that applicable to other marriages solemnized and registered in the State of Sabah under this Enactment as if the Registrar appointed for a foreign country were a Registrar for the State of Sabah.

REGISTRATION OF MARRIAGES

Registration

Section 25

The marriage after the appointed date of every person resident in the State of Sabah and the marriage of every person living abroad who is resident in the State of Sabah shall be registered in accordance with this Enactment.

Section 26

Marriage certificate and ta’liq certificate

(1)

Upon registering any marriage and upon payment to his of the prescribed fees, the

Registrar shall issue marriage certificates in the prescribed form to both parties to the marriage.

(2)

The Registrar shall also, upon payment of the prescribed fees, issue a ta‟liq certificate in the prescribed form to each of the parties to the marriage.

Reporting of void or illegal marriages

Section 27

It shall be the duty of every person to report to the Registrar the circumstances of any case in which it appears to him that any alleged marriage was void or that any registrable marriage was solemnized in contravention of this Enactment.

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Appointment of Chief Registrar, Registrar and Assistant Registrars of Muslim

Section 28

Marriages, Divorces, and Ruju’

(1)

Yang di-Pertua Negeri may appoint any qualified public officer to be the Chief

Registrar of Muslim Marriages, Divorces, and Ruju’ for the purposes of this Enactment, who shall have general supervision and control over Registrars and the registration of marriages, divorces, and ruju’ under this Enactment.

(2)

Yang di-Pertua Negeri may appoint so many qualified persons as may be necessary, to be Senior Registrars, Registrars, or Assistant Registrars of Muslim Marriages,

Divorces, and Ruju’ for such area in the State of Sabah as may be specified in the appointments.

(3)

Yang di-Pertua Negeri may, by notification in the Gazette, appoint any member of the diplomatic staff of Malaysia in any country to be the Registrar of Muslim Marriages,

Divorces, and Ruju‟ for the purposes of this Enactment in that country.

(4)

Every person appointed under subsection (2) who is not a public officer shall be deemed to be a public officer for the purposes of the Penal Code [Act 574].

Books and Registers to be kept of all marriages

Section 29

Every Registrar shall keep a Marriage Register and such books as are prescribed by this

Enactment or rules made under this Enactment, and every marriage solemnized in the State of Sabah shall be duly registered by the Registrar in his Marriage Register.

Section 30

Copies of entries to be sent to Chief Registrar

(1)

Every Registrar shall, as soon as practicable after the end of each month, deliver to the Chief Registrar a true copy certified under his hand of every entry made in the Marriage

Register.

(2)

All such copies shall be kept by the Chief Registrar in such manner as may be prescribed and shall constitute the Marriage Register of the Chief Registrar.

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Registration of foreign marriage of a person resident in the State of Sabah

Section 31

(1)

[Deleted by En. 6 of 2023]

(2)

Where any person who is a resident of the State of Sabah has solemnized a valid marriage according to Hukum Syarak abroad, he shall, within six months upon his first arrival in the State of Sabah, register his marriage before any Registrar and –

(a)

produce to the Registrar the certificate of marriage or such evidence, either oral or documentary, as may satisfy the Registrar that the marriage did take place;

(b)

furnishing such particulars as may be required by the Registrar for the due registration of the marriage; and

(c)

apply in the prescribed form for the Registration of the marriage and subscribing the declaration therein.

(3)

The Registrar may dispense with the appearance of one of the parties if he is satisfied that there exists good and sufficient reason for the absence of the party and in that case the entry in the Marriage Register shall include a statement of the reason for the absence.

(4)

Upon the registration of a marriage under this section, a certified copy of the entry in the Marriage Register signed by the Registrar shall be delivered or sent to the husband and another copy to the wife, and another certified copy shall be sent, within such period as may be prescribed, to the Chief Registrar who shall cause all such certified copies to be bound together to constitute the Foreign Muslim Marriages Register.

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(5)

Where the parties to a marriage required to be registered under this section have not appeared before a Registrar within the period specified in subsection (2), the marriage may, upon application to the Registrar, be registered later on payment of such penalty as may be prescribed.

Unlawful registers

Section 32

No person other than a Registrar appointed under section 28, shall –

(a)

keep any book that is or purports to be a register kept in accordance with this

Enactment; or

(b)

issue to any person any document that is or purports to be a copy of a certificate of a marriage or a certificate of marriage registered by the Registrar.

Voluntary registration of Muslim marriages previously solemnized under any law

Section 33

(1)

Notwithstanding sections 6 and 31, the parties to any marriage according to Hukum

Syarak solemnized under any law prior to or after the appointed date may, if the marriage has not been registered, apply at any time to a Registrar in the prescribed form for registration of the marriage.

(2)

The Registrar may require the parties to the marriage to appear before him and to produce such evidence of the marriage, either oral or documentary, and to furnish such other particulars as may be required by him.

(3)

The Registrar may, on being satisfied of the truth of the statements contained in the application, register the marriage by entering the particulars thereof in the Marriage Register prescribed for this purpose.

(4)

The entry of the marriage in the Marriage Register shall be signed by the Registrar making the entry and by both parties to the marriage, if available, or otherwise, by whichever party who appears before the Registrar.

(5)

Upon the registration of the marriage, a certified copy of the entry in the Marriage

Register signed by the Registrar and sealed with his seal of office shall be delivered

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or sent to the husband and another copy to the wife and a third shall be sent to the Chief

Registrar.

(6)

The Registrar shall not register a marriage under this section if he is satisfied that the marriage is void under this Enactment.

Legal effect of registration

Section 34

Nothing in this Enactment or rules made under this Enactment shall be construed to render valid or invalid any marriage that otherwise is invalid or valid, merely by reason of its having been or not having been registered.

PENALTIES AND MISCELLANEOUS PROVISIONS RELATING TO

THE SOLEMNIZATION AND REGISTRATION OF MARRIAGES

Omission to appear before the Registrar within prescribed time

Section 35

Any person who, being required by section 31 to appear before a Registrar, fails to do so within the prescribed time, commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.

Section 36

Contravention of section 32

Any person who contravenes section 32 commits an offence and shall be punished with a fine not exceeding five hundred ringgit or with imprisonment not exceeding three months or with both such fine and imprisonment; and for a second or subsequent offence shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.

Section 37

Interference with marriage

(a)

to compel a person to marry against his will; or

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(b)

to prevent a man who has attained the age of eighteen years or a woman who has attained the age of sixteen years from solemnizing a valid marriage, commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.

False declaration or statement for procuring marriage

Section 38

Any person who for the purpose of procuring any marriage under this Enactment intentionally makes any false iqrar or statement commits an offence and shall be punished with fine not exceeding two thousand ringgit or with imprisonment not exceeding one year or with both such fine and imprisonment.

Section 39

Unauthorized solemnization of marriage

Any person who, not being authorized thereto under this Enactment, solemnizes or purports to solemnize any marriage, commits an offence and shall be punished with a fine not exceeding two thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.

Section 40

Offences relating to solemnization of marriage

(1)

Any person who knowingly solemnizes or purports to solemnize, or officiates at, a marriage –

(a)

without there being a permission to marry as required by section 19; or

(b)

otherwise than in the presence of at least two credible witnesses other than the person solemnizing the marriage, commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.

(2)

Any person who marries, or purports to marry, or goes through a form of marriage with, any person contrary to any of the provisions of Part II commits an offence and

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shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.

Sanction for prosecution

Section 41

No prosecution for an offence under sections 35 to 40 shall be instituted except with the sanction in writing of the Chief Syar’ie Prosecutor.

Section 42

Correction of errors

(1)

If the Registrar is satisfied by statutory declaration or otherwise that any entry relating to a marriage is erroneous in form or substance, he may, in the presence of the persons married, or, if they are absent, in the presence of two credible witnesses, correct the error by ruling through the entry and making the correct entry and he shall thereupon cause the entry in the local Marriage Register to be corrected in the same manner.

(2)

The Registrar shall sign and date the correction made in the certificate of marriage and the local Marriage Register.

(3)

Every entry made under subsection (1) shall be attested by the witnesses in whose presence it was made.

(4)

A certified copy of the correction shall be sent forthwith to the Chief Registrar for a similar correction to be made in his Marriage Register.

Inspection of Marriage Register and index

Section 43

(1)

Every Marriage Register and index kept by the Chief Registrar or Registrar under this

Enactment shall be open to inspection by any person upon payment of the prescribed fee.

(2)

The Chief Registrar or Registrar, as the case may be, shall, upon payment of the prescribed fee, furnish to any person requiring it a copy of the entry in the Marriage Register and index, certified under the hand and seal of office of the Chief Registrar or Registrar, as the case may be.

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Proof

Section 44

Every Marriage Register kept by the Chief Registrar or Registrar under this Enactment and any copy of any entry therein, certified under his hand and seal of office to be a true copy or extract, shall be prima facie evidence in all courts and tribunals of the dates and acts contained or set out in the Marriage Register, copy or extract.

DISSOLUTION OF MARRIAGE

Extent of power to make any order

Section 45

Save as is otherwise expressly provided, nothing in this Enactment shall authorize the

Court to make an order of divorce or an order pertaining to a divorce or to permit a husband to pronounce a talaq except –

(a)

where the marriage has been registered or is deemed to be registered under this Enactment; or

(b)

where the marriage was solemnized in accordance with Hukum Syarak; and

(c)

where the residence of either of the parties to the marriage at the time when the application is presented is in the State of Sabah.

Change of religion

Section 46

(1)

The murtad by either party to a marriage or his or her conversion to a faith other than

Islam shall not by itself operate to dissolve the marriage unless and until so confirmed by the

Court.

(2)

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.

Divorce by talaq or by order

Section 47

(1)

A husband or a wife who desires divorce shall present an application for divorce to the Court in the prescribed form, accompanied by a declaration containing –

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(a)

particulars of the marriage and the names, ages and sex of the children, if any, of the marriage;

(b)

particulars of the facts giving the Courts jurisdiction under section 45;

(c)

particulars of any previous matrimonial proceedings between the parties, including the place of the proceedings;

(d)

a statement as to the reasons for desiring divorce;

(e)

a statement as to whether any, and if so, what steps had been taken to effect reconciliation;

(f)

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; and

(g)

particulars of the order sought.

(2)

Upon receiving an application for divorce, the Court shall cause a summon to be served on the other party together with a copy of the application and the statutory declaration made by the applicant, and the summons shall direct the other party to appear before the Court so as to enable it to inquire whether or not the other party consents to the divorce.

(3)

If the other party consents to the divorce and the Court is satisfied after due inquiry and investigation that the marriage has irretrievably broken down, the Court shall advise the husband to pronounce one talaq before the Court.

(4)

The Court shall record the fact of the pronouncement of one talaq, and shall send a certified copy of the record to the appropriate Registrar and to the Chief Registrar for registration.

(5)

Where the other party does not consent to the divorce or it appears to the Court that there is reasonable possibility of a reconciliation between the parties, the Court shall as soon as possible appoint a conciliatory committee consisting of a Religious Officer as

25

Chairman and two other persons, one to act for the husband and the other for the wife, and refer the case to the committee.

(6)

In appointing the two persons under subsection (5), the Court shall, where possible, give preference to close relatives of the parties having knowledge of the circumstances of the case.

(7)

The Court may give directions to the conciliatory committee as to the conduct of the conciliation and it shall conduct it in accordance with such directions.

(8)

If the committee is unable to agree or if the Court is not satisfied with its conduct of the conciliation, the Court may remove the committee and appoint another committee in its place.

(9)

The committee shall endeavour to effect reconciliation within a period of six months from the date of it being constituted or such further period as may be allowed by the Court.

(10)

The committee shall require the attendance of the parties and shall give each of them an opportunity of being heard and may hear such other persons and make such inquiries as it thinks fit and may, if it considers it necessary, adjourn its proceedings from time to time.

(11)

If the conciliatory committee is unable to effect reconciliation and is unable to persuade the parties to resume their conjugal relationship, it shall issue a certificate to the effect and may append to the certificate such recommendations as it thinks fit regarding maintenance and custody of the minor children of the marriage, if any, regarding division of property, and regarding other matters related to the marriage.

(12)

No Syar’ie Lawyer shall appear or act for any party in any proceeding before a conciliatory committee and no party shall be represented by any person, other than a member of his or her family, without the leave of the conciliatory committee.

(13)

Where the committee reports to the Court that reconciliation has been effected and the parties have resumed their conjugal relationship, the Court shall dismiss the application for divorce.

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(14)

Where the committee submits to the Court a certificate that it is unable to effect reconciliation and to persuade the parties to resume the conjugal relationship, the Court shall advise the husband to pronounce one talaq before the Court, and where the Court is unable to procure the presence of the husband before the Court to pronounce one talaq the Court shall refer the case to the Hakam for action according to section 48.

(15)

The requirement of subsection (5) as to reference to a conciliatory committee shall not apply in any case –

(a)

where the applicant alleges that he or she has been deserted by and does not know the whereabouts of the other party;

(b)

where the other party is residing outside Peninsular Malaysia and it is unlikely that he or she will be within the jurisdiction of the Court within six months after the date of the application;

(c)

where the other party is imprisoned for a term of three years or more;

(d)

where the applicant alleges that the other party is suffering from incurable mental illness; or

(e)

where the Court is satisfied that there are exceptional circumstances which make reference to a conciliatory committee impracticable.

(16)

A talaq raj’i pronounced by a husband unless revoked earlier, either expressly or constructively, or by an order of the Court, shall not operate to dissolve the marriage until the expiry of the ‘iddah period.

(17)

If the wife is pregnant at the time the talaq is pronounced or the order is made, the talaq or the order shall not be effective to dissolve the marriage until the pregnancy ends.

Arbitration by Hakam

Section 48

(1)

If satisfied that there are constant quarrels (shiqaq) between the parties to a marriage, the Court may appoint in accordance with Hukum Syarak two arbitrators or Hakam to act for the husband and wife respectively.

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(2)

In appointing the Hakam under subsection (1), the Court shall, where possible, give preference to close relatives of the parties having knowledge of the circumstances of the case.

(3)

The Court may give directions to the Hakam as to the conduct of the arbitration and they shall conduct it in accordance with such directions and Hukum Syarak.

(4)

If the Hakam are unable to agree, or if the Court is not satisfied with their conduct of the arbitration, the Court may remove them and appoint other Hakam in their place.

(5)

The Hakam shall endeavour to obtain from their respective principals full authority, and may, if their authority extends so far, pronounce one talaq before the Court, if permitted by the Court, and in that event the Court shall record that pronouncement of one talaq, and send a certified copy of the record to the appropriate Registrar and to the Chief Registrar for registration.

(6)

If the Hakam are of the opinion that the parties should be divorced but are unable for any reason to order a divorce, the Court shall appoint other Hakam and shall confer on them authority to order a divorce and shall, if they do so, record the order and send a certified copy of the record to the appropriate Registrar and to the Chief Registrar for registration.

(7)

Unless he is a close member of the family of the parties, no person or Syar’ie

Lawyer shall be allowed to be present or represent any of the parties in the presence of the

Hakam.

Divorce by khul’ or cerai tebus talaq

Section 49

(1)

Where the husband does not agree to voluntarily pronounce a talaq, but the parties agree to a divorce by redemption or cerai tebus talaq, the Court shall, after the amount of the payment of tebus talaq is agreed upon by the parties, cause the husband to pronounce a divorce by redemption, and such divorce is ba-in sughra or irrevocable.

(2)

The Court shall record the cerai tebus talaq accordingly and send a certified copy of the record to the appropriate Registrar and the Chief Registrar.

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(3)

Where the amount of the payment of tebus talaq is not agreed upon by the parties, the Court may assess, in accordance with Hukum Syarak, the amount, having regard to the status and the means of the parties.

(4)

Where the husband does not agree to a divorce by redemption or does not appear before the Court as directed or where it appears to the Court that there is a reasonable possibility of reconciliation, the Court shall appoint a conciliatory committee as provided under section 47 and that section shall apply accordingly.

Divorce under ta’liq or stipulation

Section 50

(1)

A married woman may, if entitled to a divorce under in pursuance of the terms of a ta’liq certificate made upon a marriage apply to the Court to declare that such divorce has taken place.

(2)

The Court shall examine the application and make an inquiry into the validity of the divorce and shall, if satisfied that the divorce is valid according to Hukum syarak, confirm and record the divorce and send one certified copy of the record to the appropriate Registrar and to the Chief Registrar for registration.

Divorce by li’an

Section 51

(1)

Where the parties to a marriage have taken oath by way of li’an according to Hukum

Syarak before a Syar’ie Judge, upon judgment, the Syar’ie Judge shall order them to be farak and be separated and to live apart forever.

(2)

The Court shall record the divorce by li’an accordingly and send a certified copy of the record to the appropriate Registrar and to the Chief Registrar for registration.

Resumption of conjugal relationship or ruju’

Section 52

(1)

In this section “revocable divorce” means a divorce by one or two talaq not followed by completion of ‘iddah; and “recohabit” means resume conjugal relations within the period before the divorce has become irrevocable.

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(2)

If, after a revocable divorce, recohabitation takes place by mutual consent, the parties shall within seven days report the fact of recohabitation and other relevant particulars to the Registrar for the area in which they reside.

(3)

The Registrar shall make such inquiry as may be necessary and, if satisfied that recohabitation has taken place in accordance with Hukum Syarak, shall register the recohabitation by endorsement upon the entry relating to that divorce in the Register of Divorce, if the divorce was registered by him, and shall require the parties to deliver to him the relevant certificates of divorce and shall issue to them certificates of recohabitation in the prescribed form.

(4)

The Registrar shall also deliver a copy of the certificate of recohabitation to the

Chief Registrar who shall register the recohabitation by endorsement upon the entry relating to that divorce in the Register of Divorce kept by him.

(5)

Any party to a marriage who fails to report the fact of recohabitation as required by subsection (2) commits an offence and shall be punished with a fine not exceeding five hundred ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.

(6)

If the divorce was not registered by the Registrar to whom the report under subsection (2) is made, he shall record on the certificates of divorce the serial number and particulars of the certificates of recohabitation and shall forward the certificates of divorce to the

Registrar by whom they were issued together with a copy of the certificates of recohabitation, and the other Registrar shall thereupon register the recohabitation by endorsement upon the entry relating to that divorce in the Register of Divorce and shall deliver the copy of the certificate of recohabitation to the Chief Registrar who shall register the recohabitation by endorsement upon the entry relating to that divorce in the Register of Divorce kept by him.

(7)

If a revocable divorce has taken place without the knowledge of the wife, the husband shall not require or request the wife to recohabit with him without disclosing to her the fact of the divorce.

(8)

If after a revocable divorce the husband pronounces a ruju’ and the wife has consented to the ruju’, she may, on the application of the husband, be ordered by the Court

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to resume conjugal relations, unless she shows good cause to the contrary, according to Hukum

Syarak, in which case the Court shall appoint a conciliatory committee as provided under section 47, and that section shall apply accordingly.

(9)

If after a revocable divorce the husband pronounces a ruju’ but the wife has not consented to the ruju’ for reasons allowed by Hukum Syarak, she shall not be ordered by the Court to resume conjugal relations, but the Court shall appoint a conciliatory committee as provided under section 47, and that section shall apply accordingly.

Order for dissolution of marriage or fasakh

Section 53

(1)

A woman or man, as the case may be, married in accordance with Hukum Syarak shall be entitled to obtain an order for the dissolution of marriage or fasakh on any one or more of the following grounds, namely –

(a)

that the whereabouts of the husband or wife have not been known for a period of more than one year;

(b)

that the husband has neglected or failed to provide for her maintenance for a period of three months;

(c)

that the husband or wife has been sentenced to imprisonment for a period of three years or more;

(d)

that the husband or wife has failed to perform, without reasonable cause, his marital obligations (nafkah batin) for a period of one year;

(e)

that the husband was impotent at the time of marriage and remains so and she was not aware at the time of the marriage that he was impotent;

(f)

that the husband or wife has been insane for a period of two years or is suffering from leprosy or vitiligo or is suffering from a venereal diseases in a communicable form;

(g)

that she, having been given in marriage by her wali Mujbir before she attained the age of baligh repudiated the marriage before attaining the age of eighteen years, the marriage not having been consummated;

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(h)

that the husband or wife treats her or him with cruelty, that is to say, inter alia –

i)

habitually assaults her or him or makes her or his life miserable by cruelty or conduct;

ii)

associates with women or men of evil repute or leads what, according to Hukum Syarak, is an infamous life;

iii)

forces the wife to lead an immoral life;

iv)

disposes of her or his property or prevents her or him from exercising her or his legal rights over it;

v)

obstructs her or him in the observance of her religious obligations or practice; or vi)

if he has more wives than one, does not treat her equitably in accordance with the requirements of Hukum Syarak;

(i)

that even after the lapse of four months the marriage has still not been consummated owing to the wilful refusal of the husband or wife to consummate it;

(j)

that she did not consent to the marriage or her consent was not valid, whether in consequence of duress, mistake, unsoundness of mind, or any other circumstance recognized by Hukum Syarak;

(k)

that at the time of the marriage she, though capable of giving a valid consent, was whether continuously or intermittently, a mentally disordered person within the meaning of the Lunatic Ordinance 1951 [Chapter 74 Sabah], or the mental disorder was of such a kind or to such an extent as to render the unfit for marriage;

(l)

any other ground that is recognised as valid for dissolution of marriages or fasakh under Hukum Syarak.

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(2)

Any person married in accordance with Hukum Syarak shall be entitled to obtain an order for the dissolution of marriage or fasakh on the ground that the wife is incapacitated which prevents sexual intercourse.

(3)

No order shall be made on the ground in paragraph (1)(c) until the sentence has become final and the husband has already served one year of the sentence.

(4)

Before making an order on the ground in paragraph (1)(e) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of the order that he has ceased to be impotent, and if the husband so satisfies the Court within that period, no order shall be made on that ground.

(5)

No order shall be made on any of the grounds in subsection (1) if the husband satisfies the Court that the wife, with knowledge that it was open to her to have the marriage repudiated, so conducted herself in relation to the husband as to lead the husband reasonably to believe that she would not seek to do so, and that it would be unjust to the husband to make the order.

Presumption of death

Section 54

(1)

If the husband of any woman has died, or is believed to have died, or has not been heard of for a period of four years or more, and the circumstances are such that he ought, for the purpose of enabling the woman to remarry, to be presumed in accordance with Hukum Syarak to be dead, the Court may, on the application of the woman and after such inquiry as may be proper, issue in the prescribed form a certificate of presumption of death of the husband and the Court may on the application of the woman make an order for the dissolution of marriage of fasakh as provided for under section 53.

(2)

A certificate issued under subsection (1) shall be deemed to be a certificate of the death of the husband within the meaning of paragraph14(4)(b).

(3)

In the circumstances mentioned in subsection (1), a woman shall not be entitled to remarry in the absence of a certificate issued under subsection (1), notwithstanding that the

High Court may have given leave to presume the death of the husband.

(4)

A certificate issued under subsection (1) shall be registered as if it effected a divorce.

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Maintenance of Register of Divorces and Annulments

Section 55

(1)

Every Registrar as well as the Chief Registrar shall each maintain a Register of

Divorces and Annulments and shall forthwith enter therein the prescribed particulars of all orders of divorce and annulment sent to him under subsection (2) and of all orders of divorce and annulment for the registration of which application is made under subsection (3).

(2)

Every Court that grants and records an order or divorce or annulment or that permits and records any talaq or any other form of divorce shall forthwith send one certified copy of the record to the appropriate Registrar and to the Chief Registrar for registration.

(3)

Where a marriage that is solemnized in the State of Sabah is dissolved or annulled by an order of a Court of competent jurisdiction outside the State of Sabah, either of the parties may apply to the appropriate Registrar and to the Chief Registrar for registration of the order, and the appropriate Registrar and the Chief Registrar, on being satisfied that the order is one that should be recognized as valid for the purposes of the law in the State of Sabah, shall register the order.

(4)

Where a pronouncement of talaq before the Court or an order of divorce or annulment, wherever granted, has dissolved a marriage that was solemnized in the State of

Sabah and has been registered under this Enactment or any written law in force before this

Enactment, the appropriate Registrar and the Chief Registrar shall, on registering the talaq or order, cause the entry relating to that marriage in the Marriage Register to be marked with the word “Dissolved” and a reference to the proceedings in which the talaq was pronounced or the order was made.

(5)

Upon registering the talaq or order of divorce or annulment and upon payment to him of the prescribed fees, the Chief Registrar shall issue the divorce or annulment certificates in the prescribed form to both parties.

Registration of divorces

Section 56

No pronouncement of talaq or order of divorce or annulment shall be registered unless the Chief Registrar is satisfied that the Court has made a final order relating to it.

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Section 57

Registration of divorces outside the Court

(1)

Notwithstanding section 55, a man who has divorced his wife by the pronouncement of talaq outside the Court and without the permission of the Court, shall within seven days of the pronouncement of the talaq report to the Court.

(2)

The Court shall hold an inquiry to ascertain whether the talaq that was pronounced is valid according to Hukum Syarak.

(3)

If the Court is satisfied that the talaq was pronounced is valid according to

Hukum Syarak, the Court shall, subject to section 125 –

(a)

make an order approving the divorce by talaq;

(b)

record the divorce; and

(c)

send a copy of the record to the appropriate Registrar and to the Chief

Registrar for registration.

Mut’ah or consolatory gift to woman divorced without just cause

Section 58

In addition to her right to apply for maintenance, a woman who has been divorced without just cause by her husband may apply to the Court for mut’ah or a consolatory gift, and the Court may, after hearing the parties and upon being satisfied that the woman has been divorced without just cause, order the husband to pay such sum as may be fair and just according to Hukum

Syarak .

Section 59

Right to mas kahwin, etc., not to be affected

Nothing contained in this Enactment shall affect any right that a married woman may have under Hukum Syarak or her mas kahwin and pemberian or any part thereof on the dissolution of her marriage.

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MAINTENANCE OF WIFE, CHILDREN AND OTHERS

Power of Court to order maintenance of wife, and the effect of nusyuz

Section 60

(1)

The court may, subject to Hukum Syarak, order a man to pay maintenance to his wife or former wife.

(2)

Subject to Hukum Syarak and confirmation by the Court, a wife shall not be entitled to maintenance when she is nusyuz or unreasonably refuses the lawful wishes or commands of her husband, that is to say, inter alia –

(a)

when she withholds her association with her husband;

(b)

when she leaves her husband’s home against his will; or

(c)

when she refuses to move with him to another home or place, without any valid reason according to Hukum Syarak.

(3)

As soon as the wife repents and obeys the lawful wishes and commands of a husband, she ceases to be nusyuz.

Power of Court to order maintenance of certain persons

Section 61

The Court may order any person liable thereto according to Hukum Syarak, to pay maintenance to another person where he is incapacitated, wholly or partially, from earning a livelihood by reason of mental or physical injury or ill-health and the Court is satisfied that having regard to the means of the first-mentioned person it is reasonable so to order.

Section 62

Assessment of maintenance

In determining the amount of any maintenance to be paid, the Court shall base its assessment primarily on the means and needs of the parties, regardless of the proportion the maintenance bears to the income of the person against whom the order is made.

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Section 63

Power of Court to order security for maintenance

The Court may, when awarding maintenance, order the person liable to pay the maintenance to secure the whole or any part of it by vesting any property in trustees upon trust to pay the maintenance or a part thereof out of the income from the property.

Section 64

Compounding of maintenance

An agreement for the payment, in money or other property, of a capital sum in settlement of all future claims to maintenance shall not be effective until it has been approved, with or without conditions, by the Court, but when so approved shall be a good defence to any claim for maintenance.

Section 65

Duration of orders for maintenance

Except where an order for maintenance is expressed to be for any shorter period or is rescinded, and subject to section 66, an order for maintenance shall expire on the death of the person against whom or in whose favour the order was made, whichever is the earlier.

Section 66

Right to maintenance or pemberian after divorce

(1)

The right of a divorced wife to receive maintenance from her former husband under any order of Court shall cease on the expiry of the period of ‘iddah or on the wife being nusyuz.

(2)

The right of a divorced wife to receive a pemberian from her former husband under an agreement shall cease on her remarriage.

Power of Court to vary orders for maintenance

Section 67

The Court may at any time and from time to time vary, or may at any time rescind, any subsisting order for maintenance, whether secured or unsecured, on the application of the person in whose favour or against whom the order was made, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.

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Section 68

Power of Court to vary agreements for maintenance

Subject to section 64, the Court may at any time and from time to time vary the terms of any agreement as to maintenance made between husband and wife, whether made before or after the appointed date, where it is satisfied that there has been any material change in the circumstances, notwithstanding any provision to the contrary in the agreement.

Section 69

Maintenance payable under order of Court to be inalienable

Maintenance payable to any person under any order of Court shall not be assignable or transferable or liable to be attached, sequestered, or levied upon for, or in respect of, any debt or claim.

Section 70

Recovery of arrears of maintenance

(1)

Arrears of unsecured maintenance shall be recoverable as a debt from the defaulter and, where they accrued due before the making of a receiving order against the defaulter, shall be provable in his bankruptcy and, where they accrued due before his death, shall be a debt due from his estate.

(2)

Arrears of unsecured maintenance that accrued due before the death of the person entitled thereto shall be recoverable as a debt by the legal personal representatives of the person.

Interim maintenance

Section 71

(1)

Where the Court is satisfied that there are grounds for payment of maintenance, the

Court may make an order against the husband for payment of interim maintenance to take effect at once and to be in force until an order of Court is made on the application for maintenance.

(2)

The husband may adjust the interim maintenance paid against the amount ordered to be paid for maintenance under the order of the Court, provided that the amount received by the wife, after any deduction, is sufficient for her basic needs.

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Right to accommodation

Section 72

(1)

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.

(2)

The right to accommodation provided in subsection (1) shall cease–

(a)

if the period of ‘iddah has expired;

(b)

if the period of guardianship of the children has expired;

(c)

if the woman has remarried; or

(d)

if the woman has been guilty of open lewdness (fahisyah), and thereupon the husband may apply to the Court for the return of the home to him.

Duty to maintain children

Section 73

(1)

Except where an agreement or order of Court otherwise provides, it shall be the duty of a man to maintain his children, whether they are in his custody or the custody of any other person, either by providing them with such accommodation, clothing, food, medical attention, and education as are reasonable having regard to his means and station in life or by paying the cost thereof.

(2)

Except as aforesaid, it shall be the duty of a person liable under Hukum Syarak to maintain or contribute to the maintenance of children if their father is dead or his whereabouts are unknown or if and so far as he is unable to maintain them.

Power of Court to order maintenance for children

Section 74

(1)

The Court may at any time order a man to pay maintenance for the benefit of any child of his –

(a)

if he has refused or neglected to provide reasonably for his child;

(b)

if he has deserted his wife and the child is in her charge;

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(c)

during the pendency of any matrimonial proceedings;

(d)

when making or subsequent to the making of an order placing the child in the custody of any other person; or

(e)

when permitting him to solemnize another marriage under section 23.

(2)

The Court shall have the corresponding power to order a person liable under

Hukum Syarak, to pay or contribute towards the maintenance of a child where it is satisfied that having regard to his means it is reasonable so to order.

(3)

An order under subsection (1) or (2) may direct payment to the person having custody or care and control of the child or to the trustee for the child.

Power of Court to order security for maintenance of a child

Section 75

(1)

The Court may, when ordering the payment of maintenance for the benefit of any child, order the person liable to pay the maintenance to secure the whole or any part of it by vesting any property in trustees upon trust to pay the maintenance or a part thereof out of the income from the property.

(2)

Failure to comply with the order requiring the person liable to vest any property in trustees for the purpose of subsection (1) shall be punishable as a contempt of Court.

Power of Court to vary order for custody or maintenance of a child

Section 76

The Court may, on the application of any interested person, at any time and from time to time vary, or at any time rescind, any order for the custody or maintenance of a child, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.

Section 77

Power of Court to vary agreement for custody or maintenance of a child

The Court may at any time and from time to time vary the terms of any agreement relating to the custody or maintenance of a child, whether such agreement was made before

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or after the appointed date, notwithstanding any provision to the contrary in the agreement, where it is satisfied that it is reasonable and for the welfare of the child so to do.

Section 78

Recovery of arrears of maintenance of a child

Section 71 shall apply, mutatis mutandis and according to Hukum Syarak, to orders for the payment of maintenance for the benefit of a child.

Section 79

Duty to maintain child accepted as member of family

(1)

Where a man has accepted a child who is not his child as a member of his family, it shall be his duty to maintain the child while he or she remains a child, so far as the parents of the child fail to do so, and the Court may make such orders as may be necessary to ensure the welfare of the child.

(2)

The duty imposed by subsection (1) shall cease if the child is taken back by either of his or her parents.

(3)

Any sum expended by a man in maintaining a child as required by subsection

(1)

shall be recoverable from the father or mother of the child.

Duration of order for maintenance of a child

Section 80

Except –

(a)

where an order for the maintenance of a child is expressed to be for any shorter period;

(b)

where any such order has been rescinded; or

(c)

where any such order is made in favour of –

(i)

a daughter who has not been married or who is, by reason of some mental or physical disability, incapable of maintaining herself; or

(ii)

a son who is, by reason of some mental or physical disability, incapable of maintaining himself,

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the order for maintenance shall expire on the attainment by the child of the age of eighteen years, but the Court may, on application by the child or any other person, extend the order for maintenance to cover such further period as it thinks reasonable, to enable the child to pursue further or higher education or training.

Duty to maintain illegitimate children

Section 81

(1)

If a woman neglects or refuses to maintain her illegitimate child who is unable to maintain himself or herself, other than a child born as a result of rape, the Court, upon proof thereof, may order the woman to make such monthly allowance as the Court thinks reasonable.

(2)

A monthly allowance under this section shall be payable from the date of commencement of the neglect or refusal to maintain or from such later date as may be specified in the order.

GUARDIANSHIP

Hadhanah or Custody of Children

Persons entitled to custody of a child

Section 82

(1)

Subject to section 83, the mother shall be of all persons the best entitled to the custody of her infant children during the connubial relationship as well as after its dissolution.

(2)

Where the Court is of the opinion that the mother is disqualified under Hukum Syarak from having the right to hadhanah or custody of her children, the right shall, subject to subsection

(3)

, pass to one of the following persons in the following order of preference, that is to say –

(a)

the maternal grandmother, how-high-soever;

(b)

the father;

(c)

the paternal grandmother, how-high-soever;

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(d)

the full sister;

(e)

the uterine sister;

(f)

the sanguine sister;

(g)

the full sister’s daughter;

(h)

the uterine sister’s daughter;

(i)

the sanguine sister’s daughter;

(j)

the maternal aunt;

(k)

the paternal aunt;

(l)

the male relatives who could be their heirs as a sabah or residuaries:

Provided that the custody of such person does not affect the welfare of the child.

(3)

No man shall have a right to the custody of a female child unless he is a muhrim, that is to say, he stands to her within the prohibited degrees of relationship.

(4)

Subject to section 83 and 85, where there are several persons of the same line or degree, all equally qualified and willing to take charge of the child, the custody shall be entrusted to the one most virtuous who shows the greatest tenderness to the child, and where all are equally virtuous, then the senior among them in age shall have the priority.

Qualifications necessary for custody

Section 83

A person to whom belongs the upbringing of a child, shall be entitled to exercise the right of hadhanah if –

(a)

she is a Muslim;

(b)

she is of sound mind;

(c)

she is of an age that qualifies her to bestow on the child the care, love, and affection that the child may need;

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(d)

she is of good conduct from the standpoint of Islamic morality; and

(e)

she lives in a place where the child may not undergo any risk morally or physically.

How right of custody is lost

Section 84

The right of hadhanah of a woman is lost –

(a)

by her marriage with a person not related to the child within the prohibited degrees if her custody in such case will affect the welfare of the child but her right to custody will revert if the marriage is dissolved;

(b)

by her gross and open immorality;

(c)

by her changing her residence so as to prevent the father from exercising the necessary supervision over the child, except that a divorced wife may take her own child to her birth-place;

(d)

by being a murtad; or

(e)

by her neglect of or cruelty to the child.

Duration of custody

Section 85

(1)

The right of the hadinah to the custody of a child terminates upon the child attaining the age of seven years, in the case of a male, and the age of nine years, in the case of a female, but the Court may, upon application of the hadinah, allow her to retain the custody of the child until attainment of the age of nine years, in the case of a male, and the age of eleven years, in the case of a female.

(2)

After termination of the right of the hadinah, the custody devolves upon the father, and if the child has reached the age of discernment (mumaiyiz), he or she shall have the choice of living with either of the parents, unless the Court otherwise orders.

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Custody of illegitimate children

Section 86

The custody of illegitimate children appertains exclusively to the mother and her relations.

Section 87

Power of the Court to make order for custody

(1)

Notwithstanding section 83, the Court may at any time by order choose to place a child in the custody of any one of the persons mentioned therein or, where there are exceptional circumstances making it undesirable that the child be entrusted to any one of those persons, the Court may by order, place the child in the custody of any other person or of any association the objects of which include child welfare.

(2)

In deciding in whose custody a child should be placed, the paramount consideration shall be the welfare of the child and, subject to that consideration, the Court shall have regard to –

(a)

the wishes of the parents of the child; and

(b)

the wishes of the child, where he or she is of an age to express an independent opinion.

(3)

It shall be a rebuttable presumption that it is for the good of a child during his or her infancy to be with his or her mother, but in deciding whether that presumption applies to the facts of any particular case, the Court shall have regard to the undesirability of disturbing the life of a child by changes of custody.

(4)

Where there are two or more children of a marriage, the Court shall not be bound to place both or all in the custody of the same person but shall consider the welfare of each independently.

(5)

The Court may, if necessary, make an interim order to place the child in the custody of any person or institution or association and the order shall forthwith be enforced and continue to be enforced until the Court makes an order for the custody.

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Order subject to conditions

Section 88

(1)

An order for custody may be made subject to such conditions as the Court thinks fit to impose and, subject to such conditions, if any, as may from time to time apply, shall entitle the person given custody to decide all questions relating to the upbringing and education of the child.

(2)

Without prejudice to the generality of subsection (1), an order for custody may –

(a)

contain conditions as to the place where the child is to live and as to the manner of his or her education;

(b)

provide for the child to be temporarily in the care and control of some person other than the person given custody;

(c)

provide for the child to visit a parent deprived of custody or any member of the family of a parent who is dead or has been deprived of custody at such times and for such periods as the Court considers reasonable;

(d)

give a parent deprived of custody or any member of the family of a parent who is dead or has been deprived of custody the right of access to the child at such times and with such frequency as the Court considers reasonable;

or

(e)

prohibit the person given custody from taking the child out of Malaysia.

Guardianship of Person and Property

Persons entitled to guardianship

Section 89

(1)

Although the right to hadhanah or the custody of the child may be vested in some other person, the father shall be the first and primary natural guardian of the person and property of his minor child, and where he is dead, the legal guardianship devolves upon one of the following persons in the following order of preference, that is to say –

(a)

the father’s father;

(b)

the executor appointed by the father’s will;

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(c)

the father’s executor’s executor;

(d)

the father’s father’s executor;

(e)

the father’s father‟s executor’s executor,

(f)

provided that he is a Muslim, an adult, sane and worthy of trust.

(2)

The father shall have, at all times, the amplest power to make by will such dispositions as he thinks best relative to the guardianship of his minor children and the protection of their interests, provided that he is in full possession of his senses.

(3)

Subsection (1) shall not apply where the terms and conditions of the instrument vesting the property in the minor expressly exclude the persons mentioned therein from exercising guardianship over the property, and in that case the Court shall appoint a guardian of the property of the minor.

(4)

A person shall, for the purposes of guardianship of person and property, be deemed to be a minor unless he or she has completed the age of eighteen years.

Power over immovable and movable property

Section 90

(1)

As regards immovable property, a legal guardian shall have no power to sell, except in the following cases, that is to say –

(a)

where at least double the price of the property may be obtained by him from a stranger by the sale of the property;

(b)

where the minor has no other means of livelihood, and the sale is absolutely necessary for his maintenance, and the minor has no other property;

(c)

where the property is required to be sold for the purpose of paying off the debts of the testator, which cannot otherwise be liquidated;

(d)

where there are some general provisions in the will of the testator that cannot be carried into effect without the sale of the property;

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(e)

where the income accruing from the estate is insufficient to defray the expenditure incurred in its management and the payment of the land revenue;

(f)

where the property is in imminent danger of being destroyed or lost by decay;

(g)

where the property is in the hands of a usurper, and the guardian has reason to fear that there is no chance of fair restitution; or

(h)

in any other case where it is absolutely necessary to sell the property on other grounds permitted by Hukum Syarak and the sale is to the manifest or evident advantage of the minor.

(2)

As regards movable property, a legal guardian shall have power to sell or pledge the goods and chattels of the minor, if he is in need of imperative necessities, such as food, clothing, and nursing; and where the movable property of a minor is sold bona fide for an adequate consideration, with the object of investing the proceeds safely and for an increased income, its sale shall be held valid.

Appointment of guardians by the Court

Section 91

(1)

In the absence of the legal guardians, the duty of appointing a guardian for the protection and preservation of the minor’s property shall be upon the Court, and in making an appointment the Court shall be guided chiefly by considerations of the minor’s welfare.

(2)

In considering what will be for the welfare of the minor, the Court shall have regard to the age and sex of the minor, the character and the capacity of the proposed guardian and his nearness of relationship to the minor, the wishes, if any, of the deceased parents; and any existing or previous relations of the proposed guardian with the minor or his property, and where the minor is old enough to form an intelligent preference, the Court may consider that preference.

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Appointment of mother as testamentary guardian

Section 92

A mother who is a Muslim, may be validly appointed executrix of the father, and in that case she may exercise the powers as a testamentary guardian, or in the absence of a legal guardian, she may be appointed legal guardian by the Court, but in the absence of such appointment she shall not deal with the minor’s property.

Section 93

Joint guardian with mother

Where the Court appoints the mother to be guardian, the Court may also appoint some other person to be guardian of the minor’s person and property, or either of them, to act jointly with the mother.

Section 94

Variation of power of guardian of property

The Court may, in appointing any guardian of a minor’s property, by order define, restrict, or extend the power and authority of the guardian in relation thereto, to such extent as is necessary for the welfare of the minor.

Section 95

Removal of guardian

The Court may at any time and from time to time remove any guardian, whether a parent of otherwise and whether of the person or the property of the minor and may appoint another person to be guardian in his place.

Section 96

Security to be given

(1)

Where a person is appointed by the Court to be the guardian of a minor’s property he shall, unless the Court otherwise orders, give security in such sum as may be appointed for the due performance of his duties as guardian.

(2)

Such security shall be given in the manner prescribed for the time being in the case of receivers appointed by the Court; and the guardian appointed shall render his accounts at such periods as may be ordered, and shall pay in any balance certified to be due from him into Court in the manner prescribed in the case of receivers.

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Limitation of powers of guardian appointed by Court

Section 97

(1)

A guardian of the property of a minor appointed by the Court shall not, without the leave of the Court –

(a)

sell, charge, mortgage, exchange, or otherwise part with the possession of any movable property of the minor; or

(b)

lease any land belonging to the minor for a term exceeding one year.

(2)

Any disposal of a minor’s property in contravention of this section may be declared void and on such declaration the Court may make such order as appears requisite for restoring to the minor’s estate the property disposed of.

(3)

The Court shall not make any order under subsection (2) unless it is necessary or advisable in the interests of the minor.

Guardian may not give discharge for capital property

Section 98

A guardian of the property of a minor appointed by the Court shall not, unless in any case the Court otherwise orders, be empowered to give a good discharge for any legacy or other capital moneys payable to or receivable by the minor.

Section 99

Guardian may support minor out of income

(1)

A guardian of the property of a minor appointed by the Court may make reasonable provision out of the income of the property for his maintenance and education, having regard to his station in life; but no sum exceeding three hundred ringgit per month may be so applied without the leave of the Court.

(2)

Where the income of the minor’s property in the hands of the guardian is insufficient for such purpose, or money is required for the minor’s advancement, the Court may order the provision for such purpose be made out of the capital of the minor’s property, and for such purpose may authorize the sale, charge, or mortgage of any part of the minor’s property and give such directions in regard thereto as may be necessary in the interests of the minor.

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Special order in case of small estate

Section 100

(2)

Any persons appointed under subsection (1) may be ordered by the Court to render an account of his dealings with the minors’ estate.

(3)

The Court may for any sufficient reason discharge any order, or revoke any appointment, made under subsection (1), and may appoint another person with the same power or such greater or lesser power as may appear advisable, or may appoint a guardian of the minor’s property.

Application for opinion, etc.

Section 101

Any guardian may apply to the Court for its opinion, advice, or discretion on any question respecting the management or administration of the minor’s property.

Section 102

Prohibition order by Court

(a)

selling, charging, mortgaging, exchanging, or otherwise parting with the possession of any movable or immovable property of the minor; or

(b)

leasing any land belonging to the minor for a term exceeding one year,

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without the prior leave of the Court.

(2)

Any disposal of a minor’s property in contravention of the order may be declared void, and on such declaration the Court may make such order as appears requisite for restoring to the minor’s estate the property disposed of.

(3)

The Court shall not make any order under subsection (2) unless it is necessary or advisable in the interests of the minor.

Guardian of orphans

Section 103

Where the father and the grandfather of a minor have died without appointing a testamentary guardian, any penghulu, police officer not below the rank of Sergeant, any person having the custody of the minor, or any person with the powers of a Protector under the Child

Protection Act l991 [Act 468], may cause the minor to be taken before the Court and the Court may appoint a guardian of the minor’s person and property or either of them.

Section 104

Court to have regard to advice of welfare officers, etc.

Court shall, whenever it is practicable, take the advice of some person, whether or not a public officer, who is trained or experienced in child welfare but shall not be bound to follow the advice.

Section 105

Power of Court to restrain taking of child out of Malaysia

(a)

where any matrimonial proceeding is pending; or

(b)

where, under any agreement or order of Court, one parent has custody of the child to the exclusion of the other, issue an injunction restraining the other parent from taking the child out of Malaysia or may give leave for the child to be taken out of Malaysia either unconditionally or subject to such conditions or such undertaking as the Court thinks fit.

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(2)

The Court may, on the application of any interested person, issue an injunction restraining any person, other than a person having custody of the child, from taking a child out of Malaysia.

(3)

Failure to comply with an order made under this section shall be punishable as a contempt of Court.

Other Reliefs

Power of Court to set aside and prevent dispositions intended to defeat claims to maintenance

Section 106

(a)

any matrimonial proceeding is pending;

(b)

an order has been made under section 58, 60 or 74 and has not been revoked; or

(c)

maintenance is payable under any agreement for or for the benefit of a wife or former wife or child,

(d)

the Court shall have power on application –

i)

if it is satisfied that any disposition of property has been made, by the husband or former husband or parent of the person by or on whose behalf the application is made, within the preceding three years, with the object on the part of the person making the disposition of reducing his or her means to pay maintenance or his means to pay mut’ah or of depriving his wife or her husband of any rights in relation to the property, subject to subsection (2), to require the person making the disposition to revoke the disposition; and ii)

if it is satisfied that any disposition of property is intended to be made with any such object, to grant an injunction preventing the disposition.

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(2)

For the purpose of this section –

“property” means property of any nature, movable or immovable, and includes money.

“disposition” includes a sale, gift, lease, mortgage, or any other transaction whereby ownership or possession of the property is transferred or encumbered but does not include a disposition made for money or money’s worth to or in favour of a person acting in good faith and in ignorance of the object with which the disposition is made;

(3)

Failure to comply with an order made under this section shall be punishable as a contempt of Court.

Restraining order

Section 107

Where –

(2)

Failure to comply with an order made under this section shall be punishable as a contempt of Court.

Prohibiting order of disposal of harta sepencarian

Section 108

(a)

where any matrimonial proceeding is pending in the Court; and

(b)

in such proceeding the Court may make an order under section 122, make an order prohibiting the wife or husband, as the case may be, from disposing of any property jointly acquired during the subsistence of their marriage if the Court is satisfied that it is necessary to do so.

(2)

Failure to comply with an order made under subsection (1) shall be punishable as a contempt of Court.

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MISCELLANEOUS

Recognition of Muslim marriages solemnized outside the State of Sabah

Section 109

(2)

A Muslim marriage solemnized in any other state in Malaysia shall be recognized as valid for all purposes of this Enactment if it is solemnized under the Islamic law relating to marriage of that state.

Recognition of marriages solemnized in Embassies, etc., in the State of Sabah

Section 110

A Muslim marriage of persons who are not Malaysian citizens solemnized in any foreign

Embassy, High Commission, or Consulate in the State of Sabah shall be recognized as valid for all purposes of this Enactment if –

(a)

it was solemnized in a form required or permitted by the law of the country whose

Embassy, High Commission, or Consulate it is, or in a form permitted under this

Enactment;

(b)

each of the parties had, at the time of the marriage, capacity to marry under the law of the place of his or her residence; and

(c)

where either of the parties is a resident of the State of Sabah, both parties had capacity to marry according to this Enactment.

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Legitimacy

Ascription of paternity

Section 111

Where a child is born to a woman who is married to a man more than six qamariah months from the date of the marriage or within four qamariah years after dissolution of the marriage either by the death of the man or by divorce, and the woman not having remarried, the nasab or paternity of the child is established in the man, but the man may, by way of li‟an or imprecation, disavow or disclaim the child before the Court.

Section 112

Birth more than four years after dissolution of marriage

Where the child is born more than four qamariah years after the dissolution of the marriage either by the death of the man or by divorce, the paternity of the child shall not be established in the man unless he or any of his heirs asserts that the child is his issue.

Section 113

Birth after declaration of completion of ‘iddah

Where a woman, not having remarried, makes a declaration that the period of ‘iddah has been completed, whether the period is for death or divorce, and she is subsequently delivered of a child, the paternity of the child shall not be ascribed to her husband unless the child was born less than four qamariah years from the date of the dissolution of the marriage either by the death of the husband or by divorce.

Section 114

Syubhah intercourse

Where a man has syubhah sexual intercourse with a woman, and she is subsequently delivered of a child between the period of six qamariah months to four qamariah years after the intercourse, the paternity of the child shall be ascribed to the man.

Section 115

Conditions for valid acknowledgment

Where a man acknowledges another, either expressly or impliedly, as his lawful child, the paternity of the child shall be established in the man, if the following conditions are fulfilled, that is to say –

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(a)

the paternity of the child is not established in any one else;

(b)

the ages of the man and the child are such that filial relationship is possible between them;

(c)

where the child is of discreet age, the child has acquiesced in the acknowledgment;

(d)

the man and mother of the child could have been lawfully joined in marriage at the time of conception;

(e)

the acknowledgment is not merely that the child is his child, but that the child is his legitimate child;

(f)

the man is competent to make a contract;

(g)

the acknowledgment is with the distinct intention of conferring the status of legitimacy; or

(h)

the acknowledgment is definite and the child is acknowledged to be the child of his body.

Presumption from acknowledgment rebuttable

Section 116

The presumption of paternity arising from acknowledgment may only be rebutted by –

(a)

disclaimer on the part of the person acknowledged;

(b)

proof of such proximity of age, or seniority of the acknowledgee, as would render the alleged relationship physically impossible;

(c)

proof that the acknowledgee is in fact the child of some other person; or

(d)

proof that the mother of the acknowledgee could not possibly have been the lawful wife of the acknowledgor at the time when the acknowledgee could have been conceived.

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Acknowledgment by a woman in ‘iddah

Section 117

Where the acknowledge or is a woman who is married or who is observing the ‘iddah, the paternity of the person acknowledged shall not be ascribed to her husband unless her acknowledgment is confirmed by him or by evidence.

Section 118

Acknowledging another as mother or father

Where a person acknowledges another as his father or mother, the acknowledgment, if assented to or confirmed by the acknowledgee, whether during the lifetime or after the decease of the acknowledgor, shall constitute a valid relationship, in so far as the parties themselves are concerned, provided that the ages of the acknowledgor and the acknowledgee are such that filial relationship is possible between them.

Section 119

Acknowledgment other than as a child, mother or father

Where a person acknowledges another as a relation, other than as a son, mother, or father, the acknowledgment shall not affect any other person unless that other person confirms the acknowledgment.

Section 120

Acknowledgment irrevocable

Once an acknowledgment or confirmation has been made in respect of paternity or relationship, the acknowledgment or confirmation shall become irrevocable.

Order to Resume Cohabitation

Section 121

Application by deserted wife

Syarak, the wife may apply to the Court for an order that the person resume cohabitation with her.

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Division of Harta Sepencarian

Section 122

Power of Court to order division of harta sepencarian

(2)

In exercising the power conferred by subsection (1), the Court shall have regard to –

(a)

the extent of the contributions made by each party in money, property, or labour towards acquiring of the assets;

(b)

any debts owing by either party that were contracted for their joint benefit;

(c)

the need of the minor children of the marriage, if any,

(d)

and, subject to those considerations, the Court shall incline towards equality of division.

(3)

The Court shall have power, when permitting the pronouncement of talaq or when making an order of divorce, to order the division between the parties of any assets acquired during the marriage by the sole efforts of one party to the marriage or the sale of any such assets and the division between the parties of the proceeds of sale.

(4)

In exercising the power conferred by subsection (3), the Court shall have regard to –

(a)

the extent of the contributions made by the party who did not acquire the assets, to the welfare of the family by looking after the home or caring for the family;

(b)

the need of the minor children of the marriage, if any,

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and, subject to those considerations, the Court may divide the assets or the proceeds of sale in such proportions as the Court deems reasonable, but in any case the party by whose efforts the assets were acquired shall receive a greater proportion.

(5)

For the purposes of the section, references to assets acquired during a marriage by one party include assets owned before the marriage by one party that have been substantially improved during the marriage by the other party or by their joint efforts.

Section 123

[Deleted by En.10 of 2024]

PENALTIES

Polygamy without Court’s permission

Section 124

Any man who, during the subsistence of a marriage, contracts another marriage in any place without the prior permission in writing of the Court commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.

Section 125

Divorce outside Court and without Court’s permission

Court and without the permission of the Court commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.

Section 126

Failure to report

(2)

Whoever, being under a duty to report or being required to submit an application under this Enactment or being required to furnish any information or to execute or sign any document lawfully necessary for the purpose of effecting registration thereof, wilfully neglects or fails to report or to comply with the requirement commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.

Desertion of wife

Section 127

Any person who, having been ordered by the Court to resume cohabitation with his wife, wilfully fails or neglects to comply with the order commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.

Section 128

Ill-treatment of spouse

Any husband or wife who ill-treats his wife or her husband or cheats his wife or her husband of her or his property, as the case may be, commits and offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.

Section 129

Failure to give proper justice to wife

Any person who fails to give proper justice to his wife according to Hukum Syarak commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.

Section 130

Disobedience by wife

Hukum Syarak commits an offence and shall be punished with a fine not exceeding one hundred ringgit or, in the case of a second or subsequent offence, with a fine not exceeding five hundred ringgit.

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Section 131

Attempt to be murtad to annul marriage

Any person who dislikes his or her spouse and by deception attempt to makes himself or herself murtad in order to annul his or her marriage commits an offence and shall be punished with imprisonment not exceeding one year.

Section 132

Illicit intercourse between divorced persons

(2)

If his wife was not at the time of resumption of cohabitation aware of the occurrence of the divorce, the man commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.

(3)

Any woman who abets an offence under subsection (1) commits an offence and shall be punished with a fine not exceeding five hundred ringgit or with imprisonment not exceeding three months or with both such fine and imprisonment.

Wilful neglect to comply with order

Section 133

(2)

The Court may –

(a)

if any order made under subsection (1) provides for payment to be made monthly, sentence the person wilfully failing to comply therewith to

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imprisonment not exceeding one month for each month’s payment remaining unpaid; and

(b)

in any other case, sentence the person wilfully failing to comply with the order made under subsection (1) to imprisonment not exceeding one year for any payment remaining paid.

Attempts and abetment

Section 134

Whoever attempts to commit, or abets the commission of, any offence under this

Enactment commits an offence punishable with the same punishment provided for the offence.

GENERAL

Powers to make rules

Section 135

(2)

In matters of practice and procedure in matrimonial proceedings not expressly provided for in this Enactment or in any rules made under this Enactment or in the

Administration Enactment, the Court may adopt such practice and procedure as may seem proper for the avoidance of injustice and the disposal of the matters in issue between the parties.

(3)

Yang di-Pertua Negeri, on the advice of the Majlis, may, by notification in the

Gazette, make rules for the purposes of this Enactment and, without prejudice to the generality of the foregoing, such rules may provide for –

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(a)

the manner in which the Registrar of Muslim Marriages, Divorces, and

Ruju’ shall exercise the powers conferred on them by this Enactment;

(b)

the forms of the Marriage, Divorce, and Ruju’ Registers and of the certificates of marriage, divorce, and ruju’ and the mode in which they are to be kept;

(c)

the supply and safe custody of the Marriage, Divorce, and Ruju’ Registers, the Registrars’ notebooks, and all declarations made for the purpose of this

Enactment;

(d)

the preparation and submission of returns of marriages, divorces, and ruju’ registered under Enactment;

(e)

the forms of any certificate, notice, or for the purpose of implementing this

Enactment;

(f)

the making of searches and the giving of certified copies;

(g)

the fees chargeable of the purpose of this Enactment;

(h)

the punishment of any breach or failure to comply with any rules made under this Enactment; and

(i)

other matters for the purpose of carrying out this Enactment.

Repeal

Section 135A

Islamic family Law Enactment 1992 [No.15 of 1992] is repealed.

Schedule

(Subsection 2 (3))

ARABIC SCRIPT FOR CERTAIN WORDS AND EXPRESSIONS ba-in kubra ba-in sughra

64

darar syar’ie fasakh hadhanah hadinah

Hakam

Hakim Syar’ie

Hukum Syarak kariah

Khul’

Li’an mastautin mumaiyiz

Mut’ah nafkah nasab nusyuz

FOR REFERENCE ONLY (September 2023)

persetubuhan syubhah qamariah

Ruju’

shiqaq ta‟liq talaq raji‟

thayyib wali

CERTIFIED by me to be a true copy of the Bill passed by the Legislative

Assembly on Wednesday, the 11th day of August, 2004.

FRANCIS

T

DA

K HAJI

DATUK JAMES ANDREW VITALES,

Deputy Speaker,

State Legislative Assembly.

65

Islamic Family Law Enactment 2004

About this state enactment

PART I

(1)

(2)

(3)

(4)

(1)

(2)

(3)

(a)

(b)

(c)

(d)

PART II

(2)

(1)

(a)

(b)

(c)

(2)

(1)

(a)

(b)

(c)

(d)

(e)

(f)

(g)

(2)

(a)

(b)

(c)

(d)

(e)

(3)

(4)

(1)

(2)

(1)

(2)

(a)

(b)

(1)

(2)

(a)

(b)

(c)

(3)

(4)

(a)

(b)

(1)

(2)

(3)

(4)

(1)

(a)

(b)

(c)

(2)

(a)

(b)

(1)

(2)

(a)

(b)

(3)

(1)

(2)

(a)

(b)

(c)

(d)

(1)

(2)

(3)

(1)

(2)

(3)