Muslim Law

• Citation: (2014) 15 SAL Ann Rev 463
• Date: 01 December 2014
• Published date: 01 December 2014
• Author: MOHAMED FAIZAL Mohamed Abdul Kadir LLB (Hons) (National University of Singapore), LLM (Harvard); Attorney and Counsellor-at-Law (New York); General Counsel & Director (Legal), Singapore Medical Council; Member of the MUIS Appeal Board

22.1 Muslims in Singapore are governed by a melange of laws emanating from both religious and secular sources. The interplay between the two makes for interesting reading and is not always wellunder stood: while, by and large, Muslims in the domestic context aregoverned by secular-oriented laws that govern society as a whole, for matters pertaining to personal laws, Muslims are governed by the strictures of religious laws under the auspices of the Administration of Muslim Law Act (Cap 3, 2009 Rev Ed) (the Act). Although these laws cover a wide spectrum of matters, on a day-to-day level, their effects are particularly pronounced in matters surrounding marriage and divorce, and in relation to matters involving the administration of estates. Ther elevant provisions of the Act that set out the legislative framework for these areas are applied and administered by the Syariah Court and, to alesser extent, the Registry of Muslim Marriages. Parties dissatisfied withthe outcome of matters from these for a are in a large majority of instances empowered, pursuant to s 55 of the Act, to appeal (or, in some circumstances, to apply for leave to appeal) the decision to the apex appellate body in Islamic law in Singapore, the Appeal Board of the Majlis Ugama Islam Singapore (the Appeal Board). The four grounds of decision issued in 2014 are emblematic of the diversity of questions and issues the Appeal Board has had to, generally speaking, grapple with and deliberate on in recent times, from matters surrounding the capacity of parties to enter into a marriage, to those surrounding the division of matrimonial assets post-divorce (including the circumstances under which consent orders properly procured before the Syariah Court ought to be varied), to the manner in which a court ought to penalise perceived misconduct by one party in the execution of court orders. Each of these judgments will be discussed seriatim.

Solemnisation Of Marriage

22.2 Given That Most Muslims' First Experience Engaging With The Complexities Of Muslim Law Would Be During The Registration Of Their Own Marriage, It Would Be Apposite To Commence The Discussion In This chapter With A Case That The Appeal Board Dealt With In 2014 Relating Tosome Of The Unique Intricacies Of That Process. In jamie Johan Hashim V Siti Rohani Binte Jalani (appeal Case No 39 Of 2013) (jamie Johan Hashim), The Appeal Board Was Made To Grapple With The Issue Of The Ramifications Of Intentionally Engaging In An Informal marriage Ceremony That Was Conducted In Contravention Of The Requirements Stipulated In The Act And Whether The Fact Of Such A marriage Ceremony Militated Any Subsequent Attempt To Register A Legally Binding marriage Involving The Same Individuals Under The Act.

22.3 The facts in Jamie Johan Hashim can be briefly stated. The parties had applied, on 22 May 2013, to register the marriage to eachother at the Registry of Muslim Marriages and had indicated in the application that they were both divorced from their previous spouses (and, by extension, possessed the requisite capacity to get married to each other). During a pre-marriage interview at the Registry of Muslim Marriages before a Kadi (who serves as a solemniser of marriages dulyappointed under the Act), however, it transpired that the parties had partaken in an informal marriage ceremony on 15 January 2012 (a ceremony that did not conform to legal requirements and therefore appeared prima facie void as a matter of law), a marriage ceremonythat the parties themselves appeared to fully appreciate would be of nolegal effect at the time.

22.4 The Kadi refused to allow the registration of the marriage (as set out in the application dated 22 May 2013) to proceed. In his grounds of decision explaining such a decision, the Kadi noted that while he was sceptical that the requirements for a legally valid marriage under Islamic law were met in the marriage ceremony that had transpired on15 January 2012, the question of the objective status of the marriage ceremony was irrelevant as the parties were, in their own minds, already married to each other as a result. Consequently, the Kadi noted, it would not be appropriate to proceed with registration as to do so would be, in effect, to allow them to be solemnised again (with the parties having already been solemnised once already on 15 January 2012, whatever the legal status of such an act might be). The partiesappealed the Kadi's refusal to allow registration.

22.5 On appeal, the Appeal Board vacated the decision of the Kadi disallowing the application for a solemnisation date. In doing so, the Appeal Board explicated upon the powers of the Kadi in dealing with such applications for solemnisation. The Appeal Board noted that pursuant to s 95(2) of the Act, the Kadi was empowered to:

make full inquiry in order to satisfy himself that there is no lawfu lobstacle according to the Muslim law or this Act to the marriage and shall not perform the ceremony until he is so satisfied.

Applying that provision to the facts of the case, the Appeal Board was of the view that it would have been incumbent upon the Kadi, in considering whether to grant the application, to consider, through the exercise of such powers, whether there had been any legal impediments to the solemnisation of the marriage and, in particular, whether themarriage ceremony that had taken place on 15 January 2012 amounted to a valid marriage in law such that it would bar the attempted registration of a second (lawful) marriage inter partes. If the ceremony did not amount to a valid marriage as a matter of law (as was suggested by the Kadi, and as the parties themselves appeared to accept), then whatever one might have made of the sensibility of the parties in partaking in such a marriage ceremony, the application could not be denied on the ground of the factual existence of such a ceremony alone since this would not per se amount to a legal impediment to a lawful Muslim marriage: at [20], [21] and [23].

22.6 The Appeal Board, however, was disinclined to make any determinative finding on whether the marriage ceremony...