Muslim Law
Author | MOHAMED FAIZAL Mohamed Abdul Kadir LLB (Hons) (National University of Singapore), LLM (Harvard); Attorney and Counsellor-at-law (New York); Director & Deputy Senior State Counsel / Deputy Public Prosecutor, Criminal Justice Division, Attorney-General's Chambers; Member of the MUIS Appeal Board. |
Date | 01 December 2015 |
Published date | 01 December 2015 |
22.1 The past year saw the issuance of three written grounds of decision by the apex appellate body in Islamic law in Singapore, the Appeal Board of the Majlis Ugama Islam Singapura, a body set up under s 55 of the Administration of Muslim Law Act (Cap 3, 2009 Rev Ed). In line with the diversity of matters that fall under the province of the domestic Muslim law regime, the three decisions provided guidance on both key aspects of Muslim substantive law: the matter of custody of children arising from the marriage; the considerations to be had in determining whether to allow a polygamous marriage; and Muslim procedural law, in particular the ramifications of non-compliance with discovery orders issued by the courts. Each of these three decisions will be considered in turn.
22.2 Globalisation and the globalised economy have increasingly rendered geographical boundaries irrelevant in a multitude of settings. In line with this, perhaps unsurprisingly, the proportion of marriages encompassing a transnational element in Singapore has been on the rise. According to statistics from the National Population and Talent Division, in 2013, the proportion of marriages involving at least one Singapore citizen and a foreigner has gone up from 23% to about 30% over the course of the preceding decade. As modern technology makes opportunities for international work, travel and communication increasingly abundant, there is every reason to expect these trends to persist. Such developments, however, are not without their challenges in a world where the institution of marriage remains largely under the jurisdiction and auspices of geographic-specific laws and judicial institutions. In particular, if and when such marriages unravel, they raise considerable challenges on the matter of how jurisdiction-focused mechanisms attempt to grapple with issues that encompass a multitude of multi-jurisdictional and international elements and considerations. As a microcosm, perhaps, of broader socio-economic trends in Singapore, the challenges facing the Islamic courts in Singapore (that serve as arbiters of Muslim law in Singapore) are not immune from these developments.
22.3 Nowhere is the navigation of this difficult divide between transnational relationships and national laws more difficult than in having to adjudicate on the often difficult matter of custody and the care and control of the children from the marriage. This point was underscored in the Appeal Board decision of Jasmin Ismail Frost @ Melor binte Ismail v Adam Alexander Frost @ Adam Frost (Appeal Case No 45 of 2014) (‘Jasmin Ismail Frost’).
22.4 As the case underwent a fairly lengthy procedural journey, it may be useful to touch on some of the more salient aspects of its journey before it came before the Appeal Board. The case involved a couple who were married in Singapore under Muslim law in 1999. The couple eventually had a child, S, who was born later that year. Unfortunately, the marriage got into some trouble very quickly after, with both parties attributing the blame for the breakdown of the marriage to the other. As the parties were attempting to work matters out, the husband took S, who was by then about 18 months old, to Phuket, Thailand. The husband had apparently been able to take S out of the jurisdiction as, unbeknownst to the wife, he had applied for a British passport for S.
22.5 Shortly thereafter, the wife commenced divorce proceedings against the husband in Singapore and during the course of those proceedings obtained an ex parte interim order from the Syariah Court granting her custody, care and control of S, as well as an order that S shall not be taken overseas without her consent. However, as the husband and S were already out of jurisdiction at the time, this order could not be effectively served. While her initial attempts to locate the whereabouts of the husband and S were unsuccessful, eventually, she was able to locate their whereabouts. Thereafter, she proceeded to visit her daughter regularly in Phuket and even found accommodation in Phuket to facilitate such visits. She also decided initially not to pursue the divorce ostensibly out of fear that this may potentially dilute her connection with S further. During one of these visits, and while the parties were attempting to reconcile, the wife got pregnant again. The wife gave birth to the second child, a son, T, in Singapore but refused to disclose her location or the location of T to the husband.
22.6 At around the same time, the husband sought a divorce in Thailand in a hearing that was not attended by the wife. As a result of these divorce proceedings, the Thai court conferred ‘parental power’ over S to the father. Interestingly, the Thai court's jurisdiction to make such an order appeared predicated upon the requirement under Thai law that any such order for divorce must be allowed by ‘the law of the country of both husband and wife's nationality’. Given that the marriage in Singapore, being a marriage under the jurisdiction of the Syariah Court as provided for under the Administration of Muslim Law Act, provided for certain procedural requirements to be satisfied before an order of divorce can be properly made, this meant that the Thai court did not, under its own laws, appear to possess the requisite jurisdiction to pronounce a divorce.
22.7 In any event, in June 2014, the wife brought S back to Singapore. The husband contended that this was the result of an orchestrated abduction on the part of the wife and intimated that S wished to return to Phuket and was being held against her will in Singapore. The wife then commenced a fresh application for divorce in the Syariah Court in Singapore, which was eventually granted by the president of the Syariah Court (‘the President’) on 20 October 2014. As part of his orders, the President also granted custody of the child to both parties, though care and control of S was granted to the husband, granting liberal access to the wife whenever she was in Thailand to visit S and to allow S to visit her mother in Singapore during school vacations. In his grounds of decision, the President noted that he had spoken to the child in chambers and from that conversation, it appeared that there had been no evidence that S was not doing well under the care of the husband and that it would be best to allow the husband to continue to guide, teach and discipline the child as he had done before June 2014.
22.8 The wife appealed this decision to the Appeal Board, contending, inter alia, that the President had failed to take into account...
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