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Tuesday, August 8, 2017

Govt removes unilateral conversion clause from new bill

Amendment to Law Reform (Marriage and Divorce) Act now only seeks to allow a party who has converted to Islam to file for divorce and seek other remedies in civil courts.

KUALA LUMPUR - The government will table a new bill today to amend the Law Reform (Marriage and Divorce) Act but it will no longer include a clause to disallow unilateral conversions.

Instead the bill to be tabled at the Dewan Rakyat for first reading only seeks to address issues faced by the spouse who converts to Islam in a marriage previously registered under civil law.

The new Law Reform (Marriage and Divorce) (Amendment) bill states it seeks to give the right to the converting spouse to file a petition for divorce to dissolve the civil marriage.

Currently, the law does not give the spouse who has converted to Islam the right to file a petition for divorce in civil court under Act 164 as the right to dissolve the marriage in a civil court is only given to the spouse who has not converted to Islam.

The bill further states since the spouse who has converted to Islam does not have the right to file a petition for divorce under Act 164, he/she does not have the right to make an application in a civil court for other relief such as maintenance, custody of children and division of matrimonial assets, among others.

“The situation causes hardship to the converting spouse since Act 164 does not provide for them to seek other remedies (in civil court), hence they seek to find other remedies by filing an application for a divorce and other relief in Shariah Courts,” the bill reads.

The bill also states conflicts will arise when both spouses make respective applications in two different courts, for instance, the civil courts and the Shariah Courts.

Although, the bill states the Shariah Courts can grant an order for a divorce and ancillary relief, it does not dissolve the civil marriage under Act 164 because the power to dissolve a marriage is only given to the civil courts.

Therefore, the Shariah Courts do not have jurisdiction to dissolve the marriage and make order for ancillary relief and such order for divorce.

The bill also states so long as the spouse who has not converted to Islam does not file a petition for divorce in the civil court, the civil marriage of the spouses is deemed to be valid and continues under Act 164.

Other clauses included in the new bill seek to allow a party to a marriage who has converted to Islam or both parties to present a petition for a divorce before a civil court under Act 164.

At present, the right to present a petition for divorce is only given to the party who has not converted to Islam. Those who have converted to Islam cannot apply for divorce under the Islamic Family Law Act as the Shariah Courts does not have jurisdiction to hear any case where a non-Muslim is involved.

Rights to matrimonial assets

Other changes are to ensure the next-of-kin of the person converting to Islam who subsequently dies before the non-Muslim marriage is dissolved, shall be entitled to the matrimonial assets.

In making the distribution, the civil court shall have regard to the extent of the contributions made towards the acquisition of the assets, debts owing, the duration of the marriage and the needs of the children.

On a separate issue, under clause 3, the bill seeks to confer equal rights in giving consent for marriage to the mother or adopted mother of a person below 21 years of age, similar to that given to the father.

Yesterday, for the second time, the Government withdrew the controversial bill which would have barred the unilateral conversion of children by any one parent.

The bill was tabled for first reading in the Dewan Rakyat last November and was to have been debated at this sitting.

The government’s move to amend the legislation comes following the controversy arising from two cases where the Muslim convert ex-husbands had unilaterally converted their children to Islam.

The previous bill had added a clause, which had been previously agreed to by the Cabinet, which clearly stated that both parents in a civil marriage must agree to the conversion of a minor into Islam.

However, in the new bill to be tabled today, this clause has been removed.

By Minderjeet Kaur

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