Law reforms when one spouse converts to Islam: the Problem

ARCHIVES 2009

By admin-s On Jun 19, 2009

By Shanmuga Kanesalingam (Loyarburok)

Shamala, Subashini and Indira Ghandi^* are all household names now. They are the most prominent of a number of cases where one spouse in a non Muslim marriage converts to Islam, and attempts to force the other spouse to go to the Syariah Court and to be subjected to Islamic personal law regarding the breakup of their marriage.

Minister Nazri Aziz has said that 3 laws will be amended soon to address this situation. In this series of 2 articles, I will try and explain why there is a problem and what reforms are needed to try and solve the problem.

Easy peasy divorce

For non Muslims, it is pretty darn difficult to get a divorce. If both spouses do not agree to a divorce, it must be proved that the marriage has “irretrievably broken down” for a decree of divorce to be made under section 53 of the Law Reform (Marriage and Divorce) Act 1976.

There are only 4 ways of showing that the marriage has irretrievably broken down: the other party has committed adultery (so difficult to use this if you are the one having an affair); the other party has behaved in such a way that you cannot live with him or her; the other party has deserted you for more than 2 years or you have lived apart for 2 years.

A husband must pay his wife maintenance (but not vice versa unless the husband is disabled), and generally custody of children (especially young children) goes to the mother and the husband must pay her maintenance for those children.

So all in all, its pretty difficult and expensive for a guy to get out of a marriage, and you might end up losing custody of your kids! So what do you do?

Under our current situation, a husband (or wife, but usually husband) is able to escape his marital obligations quite easily by following this easy step-by-step guide:-

First, convert to Islam – Easily done, no serious questions asked.

Second, convert your children to Islam if you want custody. Their presence is not required, merely their birth certificates. (And some even argue no registration at all is required – infant children are automatically converted to Islam when either one of their parents embraces Islam). The Islamic authorities will give you a conversion certificate, which the Syariah enactments say is conclusive evidence the children are now Muslim.

Usually, the very next day after this conversion, the husband will apply for a “divorce” of his non Muslim marriage in the Syariah court and for custody of his now “Muslim” children. He gets interim custody orders immediately, within a day or two of filing proceedings in the Syariah court

Note that the wife cannot validly appear in the Syariah court to dispute this and to obtain any relief. The Syariah Court only has jurisdiction over persons professing the religion of Islam, and applies the theological law of Islam.