Muslim Law

• 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.
• Publication year: 2021
• Citation: (2021) 22 SAL Ann Rev 702
• Date: 01 December 2021

I. Introduction

24.1 It has been suggested elsewhere that the enduring co-existence of parallel Muslim and civil law regimes in the domestic context is underpinned by the “mutual respect the Muslim and the non-Muslim community have for each other”.1 This philosophy of mutual understanding and an in-depth appreciation of the logic and limits of each of these regimes relative to the other in such a pluralistic legal regime in which these two regimes operate in concert extends to the jurisprudential stances taken by the domestic courts. In line with this, the civil courts have long emphasised the need to recognise Muslim law as being “part of the law of the land”2 and taken pains to determine questions of law arising before it in the civil courts, where appropriate, through reliance on Muslim law and doctrines.3

24.2 Consonant with this, the Muslim courts have, over the years, increasingly placed reliance on and made reference to jurisprudence emanating from the civil courts in the determination of its disputes. That this is so is, of course, unsurprising and unexceptional — while the practice of religion, by its nature, involves the adopting and espousing of a unique belief system that incorporates a suite of “distinctive sets of practices and rituals”,4 it is axiomatic that the practice of religion anywhere in the world would be largely informed by the prevailing customs, values and ethical precepts of that particular society. In that sense, it should be unsurprising that notions of justice across civil and Muslim law spheres in Singapore often overlap and sometimes wholly converge. Of course, there are logical limits to this argument — to take an obvious example, there are specific areas of Muslim law for which no parallel or meaningful

analogue exists in the civil law context: areas such as faraid or talak, for example, and it is inevitable that in those categories of jurisprudence, the Muslim courts would have to chart its own unique path. In the same vein, where the statutory powers across the two regimes differ, then it would follow that discrete outcomes might follow for similar applications across the two spheres.

24.3 The four written decisions from the Appeal Board in 2021 illustrate the workings and variations of these themes and reflect the modus vivendi approach of the Appeal Board to Muslim law issues. The first two cases, NA v WN5 and Appeal Case No 8/2021 (“Appeal Case No 8”), provide illuminating examples of the convergence in jurisprudential approaches in areas of Muslim law which possess a civil law equal, while the third, Appeal Case No 5/2021 (“Appeal Case No 5”), provides a snapshot of the need to take a unique jurisprudential approach in areas that possesses no equivalent (given the unique place of the subject matter of that discussion in the context of Muslim matrimonial law) in the civil law landscape. The final decision, Appeal Case No 30/2021 (“Appeal Case No 30”) deals with the related question of whether the powers conferred upon the civil courts in dealing with matrimonial disputes are, by way of analogy, ipso facto automatically available in the Syariah Court. This chapter will deal with these four cases in turn.

II. Convergence of Muslim and civil laws — Division of assets

24.4 NA v WN involved cross-appeals by both parties in relation to the division of two matrimonial properties pursuant to the breakdown of an eight-year-long marriage from October 2011 to January 2020 between two professionals, a medical doctor (“the wife”) and a legal professional (“the husband”). The two properties in question were a landed home that was purchased in November 2014 held solely in the wife's name (“Property 1”) — bought for a sum of $4.7m — and an apartment purchased in 2008 by the husband held solely in his name (“Property 2”).

24.5 As can be seen from the brief chronology set out above, Property 2 was bought prior to the existence of the marriage, while Property 1 was bought during the course of the marriage. In order to fund the purchase of Property 1, the wife had sold a condominium property that she was in possession of and that she held in her sole name prior to the marriage. The husband also provided a smaller sum of money towards the purchase of Property 1.

24.6 On 26 November 2014, the parties executed a detailed financial document (“the Written Agreement”) which set out the costs involved in the purchase of Property 1 and a detailed breakdown of the financial contributions of both parties to Property 1. It also set out the net value and outstanding mortgage for Property 2 as well as a summary of the contributions of both properties by the parties from 1 December 2014 onwards. The Written Agreement was entitled “Equal Property Assets of 26 November 2014”. It would appear, for all intents and purposes, that the Written Agreement was a document that sought to reflect how an equal sharing of both properties 1 and 2 ought to be achieved inter partes through a series of financial arrangements.6 It is not in dispute that by the time of the divorce some five years after the genesis of the Written Agreement, the arrangements set out in it were perfected and satisfied by both parties.

24.7 The question that arose before the Muslim courts was how, if at all, the Written Agreement should influence the process of division of matrimonial assets. At first instance, in relation to the matter of direct contributions, the wife contended that reliance on the Written Agreement would result in a “patently unfair” outcome in so far as she had put in more money than the husband; the court should accordingly “replace” the proportions envisaged in the Written Agreement with what she claimed to be a more equitable approach. In that connection, it was pointed out by the wife that s 52(8)(e) of the Administration of Muslim Law Act7 (“AMLA”) was not applicable in so far as the provision in question mandated that consideration be had to “any agreement between the parties with respect to the ownership and division of [matrimonial] property in contemplation of divorce”, and it was contended that this was not the premise of the document, as the Written Agreement was no more than a document that focused solely on how the parties should contribute towards the purchase of the two properties.8 In contrast, the husband contended, at first instance, that full effect ought to be given to the Written Agreement and that consequently, both parties should be deemed to have contributed equally such that the direct contributions for both parties ought to be the same.9

24.8 On the matter of indirect contributions, the wife contended that she had put in significantly more into the marriage than the defendant, including her contributions on the logistical matters affecting both parties and her status as the primary caregiver to the two children. With this in

mind, the wife contended that her contribution to indirect contributions was 80%, while the husband's contribution should be assessed at 20%. The husband unsurprisingly disagreed and contended that they had contributed equally.

24.9 The wife then made arguments on an eventual ratio of distribution that averaged out their ostensible direct and indirect contributions, and grafted upon that calculation a further “adjustment” of the proportions in her favour to take into account the fact that she would have two young children under her care moving forward.

24.10 The approach set out in the preceding paragraphs, in which a court undertaking the process of division of matrimonial assets does so through the lenses of direct and indirect contributions, which are then adjusted where necessary, mirrors the three-step structured approach (“the structured approach”) adopted by the Court of Appeal in ANJ v ANK.10 Under that approach, the court adopts a three-stage test in which it first considers the parties' direct contributions as a ratio relative to each other, then proceeds to undertake the same exercise for indirect contributions, before deriving a final point by taking the average of these ratios, with a final adjustment where needed.11

24.11 The President of the Syariah Court (“the learned President”), at first instance, applied the structured approach in coming to her conclusion on the appropriate orders to be made for the division of matrimonial assets. However, she found that in ascertaining the parties' direct contributions, only actual and direct payments ought to be considered. Having considered the evidence, she found that the ratio of direct contributions was 55.9: 44.1, in favour of the wife. On the matter of indirect contributions, the learned President opined that a “rather specific” ratio of 72:3812 in favour of the wife was appropriate. This was then averaged out to a proportion of 64:36 in favour of the wife having regard to the rounded versions of the average of these two ratios.

24.12 Both parties appealed the decision of the learned President. Their arguments on appeal can be broadly summarised as follows:

(a) The husband. On the matter of financial contributions, the husband contended that while he accepted that the Written

Agreement did not fall within the auspices of s 52(8)(e) of the AMLA, it should be given weight as corroborative evidence of the parties' intent given the level of specificity of the document in question and the financial arrangements that the parties carried out pursuant to such document.13 On the matter of indirect contributions, the husband accepted that the wife contributed more in this manner but suggested a more equitable ratio would be 55:45 in the wife's favour. The average of these would be 52.5:47.5 in favour of the wife.14

(b) The wife. The wife sought a further increase in direct contributions (from 55.9% to 57.4%) from that ordered by the learned President and sought to be allocated 80% for her indirect contributions, resulting in a weighted average of 68.7:31.3 in her favour.15 She then proceeded...