Muslim Law

• Published date: 01 December 2020
• Citation: (2020) 21 SAL Ann Rev 761
• Publication year: 2020
• Date: 01 December 2020
• Author: MOHAMED FAIZAL Mohamed Abdul Kadir SC LLB (Hons) (National University of Singapore), LLM (Harvard); Attorney and Counsellor-at-law (New York); Deputy Chief Prosecutor, Crime Division, Attorney-General's Chambers; Member of the MUIS Appeal Board.

I. Introduction

24.1 It has been said that the “close relationship between the civil and Muslim law system requires a constant negotiation and renegotiation of both substantive and procedural laws governing both legal systems”.1 Four cases in 2020, one emanating from an appeal from a decision in the civil courts (the Family Justice Courts, to be precise) and three others arising in the Muslim law context, reflect the intricate workings of such a relationship and the close symbiotic relationship between the two regimes.

II. Stay of proceedings

24.2 Part of such negotiation between the two systems as alluded to in the preceding paragraph finds legislative expression in s 17A of the Supreme Court of Judicature Act2 (“SCJA”), which sets out that, while the High Court possesses jurisdiction to deal with matters of custody and division of property matters, they should stay “the civil proceedings” when there are live concurrent proceedings in the Syariah Court on these matters unless the Syariah Court gave leave by way of the issuance of a continuation certificate to permit such proceedings in the civil courts to proceed.

24.3 The decision of the High Court in VFU v VFV3 serves as a salutary reminder of the importance of being mindful of the need for such civil proceedings to be live in order for such a stay to be ordered. That case involved two parties who were married under Muslim law and who had three children. The wife had initially filed an Originating Summons (“OSG 9/2017”) in the Family Court as a result of some marital difficulties. OSG 9/2017 would eventually culminate in a consent order

(“the OSG Order”) which provided access to the children to the husband. Subsequently, the husband commenced divorce proceedings in the Syariah Court. Sometime thereafter, the husband commenced committal proceedings (“the committal proceedings”) against the wife for having breached the OSG Order for a period of time in between the OSG Order and the date such proceedings were commenced. Shortly thereafter, the Syariah Court made certain interim orders on access to the children (“the Syariah Court interim orders”).

24.4 The District Judge presiding over the committal proceedings declined to find that she had jurisdiction to hear the matter in the absence of a continuation certificate by virtue of s 17A(2) of the SCJA. The husband appealed this finding, urging the High Court to find that as the summons for the order of committal did not amount to proceedings on custody or division of property, leave of the Syariah Court (by way of the issuance of a continuation certificate) pursuant to s 17A was not required.

24.5 Debbie Ong J allowed the appeal. Noting that OSG 9/2017 had already concluded with the issuance of the OSG Order, Ong J opined that there was, in the circumstances, no civil proceedings to speak of that could be stayed.4 Furthermore, Ong J observed that the OSG Order itself should not be stayed by virtue of s 17A of the SCJA, as the raison d'être for the stay of civil proceedings was to prevent a situation of two courts determining the same matter and reaching distinct outcomes. This concern possessed no scope for application in the present instance as there were no orders that regulated the parties until the Syariah Court interim orders were issued.5 Consequently, Ong J found that the OSG Order would have subsisted and would have regulated the parties until it was superseded by the Syariah Court interim orders. It would, therefore, consequently follow that the committal proceedings were not “civil proceedings” that needed to be stayed under s 17A of the SCJA and there was no requirement for a continuation certification before the civil proceedings could proceed.6

24.6 VFU v VFV serves as a reminder of the need for the civil courts to be mindful to engage in a careful assessment in such cases of whether the proceedings before it are in fact the sort of proceedings that fall under the umbrella of proceedings that ought to be stayed under s 17A of the SCJA. Ong J's decision may potentially be rationalised through a slightly different, albeit related, lens: should the commencement of Syariah Court proceedings ipso facto result in the suspension of the operation of the

OSG Order, it would essentially allow for the emasculation of such an order by a dissatisfied party through the commencement of Syariah Court proceedings. This would be undesirable in so far as it would mean that any party aggrieved by such an order, and who does not wish to be bound at all by its strictures, could immediately commence Syariah Court proceedings to hollow the order of any effect. While the civil courts should certainly be mindful of the need to allow the Syariah Court to make the necessary orders and to regulate proceedings in relation to Muslim marriages, it would not be ideal for there to be a vacuum on the issue of custody and access in the time between when the Syariah Court proceedings commence and the time when interim orders on such matters can be made. The reasoning in VFU v VFV ensures that, in cases of this nature, the parties are continuously regulated on these matters.7

III. Applicability of structured approach for division of matrimonial assets to Muslim law cases

24.7 Appeal Case 26/2018 provided the MUIS Appeal Board the occasion to consider the applicability of the three-step structured approach (“the structured approach”) adopted by the Court of Appeal in ANJ v ANK8 to cases adjudicated by the Syariah Court and the MUIS Appeal Board. It would be reminded that the structured approach involved a three-step process to assist with the process of division of matrimonial assets, broadly as follows:9

(a) Under the first step, the court considers the parties' direct contributions as a ratio relative to each other.

(b) Under the second step, the parties' indirect contributions (both financial and non-financial) are expressed as a ratio relative to each other.

(c) The parties' overall contributions, relative to each other, are then derived by taking the average of these two ratios, though depending on the circumstances of the case, one of the ratios might be accorded more significance compared to the other.

24.8 The structured approach was a watershed development in family law at the time. It reflected a pronounced shift from the...