The newly passed Law Reform (Marriage and Divorce)(Amendment) Bill failed to settle the controversy over the unilateral conversion of minors but is it a total loss?
FAMILIES which were torn asunder after one parent in a civil marriage converted to Islam see no reason to celebrate the Law Reform (Marriage & Divorce) (Amendment) Bill that was passed on Thursday.
M. Indira Gandhi was one of those whose life was upended when her husband converted to Islam in 2009 and proceeded to convert their minor children three weeks later without her knowledge. Weeks later, he took their youngest daughter who was just 11 months old and left. Indira has been walking in and out of the courts since 2009.
She and others in the similar situation were counting on the proposed Section 88A to sort out their problems as it would have invalidated unilateral conversions of minor children.
The Government promised them in 2009 that this matter would be resolved and there were sighs of relief when Section 88A appeared in the Bill that was presented in the Dewan Rakyat last November.
However, that was withdrawn early last week. Section 88A disappeared on grounds it was unconstitutional.
Suhakam chairman Tan Sri Razali Ismail expressed disappointment saying “the amendment would have resolved interfaith custody conflicts between Muslim and non-Muslim parents; and establish coherent standards for reconciling the principle of the best interest of the child with the constitutional rights of parents in the exercise of the right to freedom of religion”.
The Government’s argument that it would conflict with Federal Court decisions on the issue has been shot down by some lawyers.
Nizam Bashir, who practises in the civil and syariah courts, is one who takes issue with “this convenient use of stare decisis (to stand by things decided).”
“Parliament is free to work out how it can enact Section 88A, so long as the proposed law stays within the confines of the Federal Constitution,” he says.
Family law practitioner Foo Yet Ngo agrees, saying, “Parliament is not bound by court decisions. It can always amend the law.”
Another family law practitioner, Honey Tan, scoffs at the argument that “the Legislature takes the cue from court decisions.”
“One of the key roles of the Legislature is to step in when the Judiciary has failed to deliver justice to those unfairly treated.”
Women’s NGOs have been calling for reform on several issues arising from a divorce or separation decades ago.
“The best thing that came out of the amendments is that children who are studying will be able to receive maintenance even after they are 18.
“This is a great relief for many mothers. They have borne the brunt of finding ways to support their children’s education when deadbeat dads do not pay maintenance to their children after 18,” says Tan.
Another good amendment relates to the distribution of matrimonial assets, says the Association of Women Lawyers, Persatuan Kesedaran Komuniti Selangor, Sisters in Islam and Women’s Aid Organisation in a joint reply.
“The old Section 76 said that when a matrimonial asset was acquired through the sole effort of one party – usually husbands – the husband gets a greater share. Now, there is no such differentiation and the duration of a marriage is also taken into account,” the group adds.
This will help women who divorce in their 40s and above and who were married a long time, notes Tan.
“They would have put their heart and soul into their marriages and it is only right they should have a fair share of the matrimonial assets.
“The new Bill is not all doom and gloom,” she admits, adding that overall, the amendments will improve the positions of ex-wives and children.
The four women’s groups are especially pleased with the amendment to Section 51 which now allows both the converted and unconverting spouse to petition for divorce by mutual consent, or by proving that the marriage has irretrievably broken down. (Previously, the converted spouse could not apply for divorce in the civil courts.)
“Now, the unconverted spouse can bring up the issue of domestic violence where a converted spouse is concerned. This is important as the amount of maintenance is partially influenced by whom the courts decide is responsible for the irretrievable breakdown of the marriage.”
They lament, however, that while mothers now have the same right as fathers to consent to the marriage of their child who is below 21, the Government missed the opportunity to ban child marriages for non-Muslims by not amending Sections 10 and 21(2) to disallow the Chief Minister from giving consent where the girl is between 16 and 18 years of age.
A plus in the Bill is the transitional provision, they say, adding that the retrospective provision means that parties currently embroiled in divorce will benefit from the new amendments.
Would Section 88A really have been able to stop the unilateral conversion of children? Aren’t the provisions allowing for one parent to convert the child in several state enactments on the administration of Islam?
Tan says that if the proposed Section 88A had been retained, “the Judiciary would take the cue from the Legislature that this was the intention: stop the conversion of children to Islam without both parents’ consent.”
Nizam says Section 88A “would have been able to stop the unilateral conversion of children in spite of any provisions to the contrary in any State Enactment.
“This is so, as Article 75 of the Federal Constitution states: ‘If any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void.’
“In other words if the amendment were passed, those State Enactments would have been inconsistent with Section 88A and would have been void.”
The explanatory statement in the Bill stresses how the existing LRA barred converting spouses from filing for divorce in the civil courts or for any ancillary relief. It says that this caused hardship because they could not obtain remedies in the civil court and so some went to the Syariah Court instead.
Is the system now more fair to the converting spouse who was denied access to the civil court?
According to Nizam, there were some High Court decisions suggesting that the converting spouse has the right to institute proceedings in the Family Court.
“Nevertheless, as those decisions were never taken up on appeal and Section 3(3) of the Law Reform (Marriage and Divorce) Act clearly states it shall not apply to a Muslim, there was uncertainty as to whether a converting spouse could petition for divorce to the Family Court.
“With these amendments, those concerns are a thing of the past; the converting spouse is now statutorily assured of the right to pursue his or her claims in the Family Court,” he adds.
Foo says that the spouse who “converted on the quiet and converted the children on the quiet ended up getting more rights”.
While recognising the progressive changes in the amended Bill, Razali notes that the core issue of prohibiting unilateral conversion that has affected so many lives and the future of many children remains without a solution despite indications from the Government to deal with the matter.
During the debate in the Dewan Rakyat, Minister in the Prime Minister’s Department Datuk Seri Azalina Othman Said gave her assurance that “this does not mean it is the end of the story”.
Indira Gandhi has waited eight years already. She and others like her would like to see resolution come faster.