Shared parenting as an interpretation of the best interests of the child in custody disputes: what Malaysia learn from Australian experience

In most western countries there is now a consensus that shared parenting is the best alternative for children when their parents separate or divorce. Maintaining a relationship with both parents after divorce, by way of a shared parenting arrangement is said to be the best alternative to merely providing for contact among children and non-resident parents by way of a sole custody arrangement. Such an arrangement would minimise conflict between warring parents and maintain a healthy level of adjustment for the children, therefore diminishing the detrimental effects of parental conflict on children. The best interest of the child would be preserved as the child is able to retain a strong connection with both parents despite of parental break-up. The basis of this concept can be found in the United Nation Convention on Right of Child 1989, which clearly emphasized on the importance of both parents to be equally responsible for the upbringing of their children. This paper seeks to examine the extent of the laws and the judicial decisions in Malaysia in upholding shared parenting as the best interest of the child in custody disputes after parental divorce. In doing so, it attempts to provide an overview of the current law and the approach of the courts in granting custody orders. The paper will also highlight the problems of implementing shared parenting arrangement, particularly in cases involving determination of the religion of the child and domestic violence. As a comparison, it also seeks to examine the Australian legislation on custody disputes which has undergone a tremendous shift from sole custody standard to shared parental responsibility. The purpose is to learn from the Australian experience in advocating shared parenting as the primary custody standard for the best interest of the child in custody disputes and whether Malaysia may adopt a similar legislative amendment

The cultural and legal perspectives on wife battering in Malaysia

Wife battering has become one of the major problems across the world. It cuts across lines of races, religion, income and classes of people. It is also deeply embedded in all cultures, so much so that millions of women consider it as a way of life. This article seeks to examine the cultural and legal perspectives on wife battering in Malaysia. In relation to cultural perspective, it attempts to address the issue of cultural beliefs of the major races in Malaysia, i.e. the Chinese, Indians and Malays, on this matter particularly pertaining to the extent of the husband’s authority over the wife which is claimed to be one of the contributing factors of wife battering. In relation to this, special emphasis is made on the misconception of wife battering in Islam. Finally, the article discusses the applicable laws and the available remedies and presents to what degree these laws are adequate in controlling the problem of wife battering in Malaysia

Legal disputes in determining the religion of the child when one parent converts to Islam under Malaysian Law

This paper examines the child’s right to determine his / her religious status when one parents converts to Islam under Malaysian law. Determination as to the religious status of a child as well as custodial rights are very much in dispute between these parents as their marriage has to come to an end due to religious sanctions and lack of tolerance between them to come to a settlement. As opposed to custodial right, the issue is whether the welfare principle is still relevant in determining the religious status of a child. The current practice suggests that the father is the central focus in deciding the child’s religion under the Federal Constitution as well as Shari‘ah rules though lately there were arguments to allow both parents to have such power. Therefore this study will examine legal provisions pertaining to children’s right to religion under Malaysian law and explore an equal position under the Shari‘ah

Application of maslahah (interest) in deciding the right of hadanah (custody) of a child: the practice in the Syariah Court of Malaysia

Firstly, this article briefly discusses the concept of maslahah in Islam. Relevant verses in the Qur’an and hadith of the Prophet Muhammad s.a.w are referred to show that the principle of maslahah has strong supportive authorities in Shariah. Secondly, the application of the principle of maslahah in custody dispute is deliberated. The application of the divisions of maslahah i.e., dharuriyyah, hajiyyah and tahsiniyyah is presented in detail. Relevant provisions of the Islamic Family Law Act/Enactment and decided cases of the Shariah Court are analysed to study the practice of the principle of child’s interest in Malaysia. Thirdly, conclusion is made emphasising on the importance of the Syariah Courts giving due consideration to this principle of maslahah in awarding the custody order. The study was mainly based on library research. It used Islamic legal research methodology. The benefit of this methodology is that through the study of the classical schools of legal thought of the Muslim jurists and the reasoning behind their rulings, a proper knowledge concerning the topic of the study has been acquired and this knowledge has been used to analyse the existing law and application of maslahah in Malaysia. Islamic legal research methodology is based on the study of the sources of law i.e., the Qur’an and the Sunnah and also other secondary sources of shariah. Basically, it involves a thorough study of the relevant literature on fiqh, tafsir and hadiths of the Prophet Muhammad of the recognised schools of Islamic law relating to the principle of maslahah in custody dispute

Application of shared parenting in Malaysia: appraising the Australian experience

Internationally, shared parenting has been highlighted and agreed to be the best method in protecting the welfare of the child. The religion of Islam also promotes the concept of shared parenting to ensure that the welfare of the child is well protected. In Malaysia, legislation on child custody emphasises that the welfare of the child shall be given paramount consideration but there are no provisions on shared parenting and specific guidelines on its application. An amendment was made to the laws to include a provision on equal parental rights but it does not directly relate to the principle of shared parenting. The vagueness of the law and the lack of proper guidelines in relation to shared parenting open the doors for the courts to render inconsistent decisions in determining custodial rights, and this often results in decisions in favour of sole custody. The absence of specific laws on shared parenting has also caused difficulties for parents in cooperating for the sake of their children. They tend to stress on their conflicts and fight for their rights rather than focus on the welfare of the children. This paper seeks to discuss the current position of shared parenting after marital separation in Malaysia. As Malaysia practises a dual legal system, this paper will also examine the suitability of applying the shared parenting principle in both systems. A brief comparative review will also be made of Australian law and policies, which are more advanced on the subject of shared parenting

The adequacy of existing support systems in addressing the issue of teenage pregnancies in Malaysia: a legal response

This article examines the adequacy of the current support systems in addressing the issue of teenage pregnancies in Malaysia. This study was conducted primarily through a doctrinal study of existing literature such as articles, journals and reports related to the current issues encountered by the pregnant teenagers. There is also anon-doctrinal method carried out whereby the researchers had conducted fieldwork interviews with the government department, non-government organisations (NGOs) and social activist on the efforts done in addressing the problem. Due to the lack of a specific policy on teenage pregnancies in Malaysia, there have been concerns on issues related to the rights of these teenagers to education during pregnancy; criminal issues on abortion, infanticide and child sexual grooming; child marriages and the lack of support from parents,family members and the society for care, motivation, healthcare and preparation for motherhood among these teenagers. The findings establish the current support system is inadequate to meet the contemporary needs of pregnant teenagers. It is suggested that a comprehensive legal framework for teenage pregnancies in Malaysia needs to be put in place. These can include legislating necessary laws and policies,which can be more effective through integrated services and proper monitoring and enforcement in order to meet the current needs of the targeted group

Right of a child to maintenance: harmonising the laws in Malaysia

One of the issues in child’s maintenance is the maximum age of a child in which a father is still responsible over the maintenance. Under the Civil law, there is no provision which requires the parent to provide maintenance if the child is pursuing his/her tertiary education. The Islamic Family law provides eighteen years old as the maximum age for a child to still be entitled to maintenance. It is also provided that if the child is pursuing his/her tertiary education, claim for the educational expenses can be made at the Shariah court against the parent. There is no similar provision under the Law Reform Act, 19676. There are also other aspects in child’s maintenance that can be harmonised under the existing laws in Malaysia. Thus, the paper will deliberate the right of a child to maintenance in Shariah and Civil law. Relevant legal provisions as provided for under the Malaysian laws i.e., the Law Reform Act, 1976 and the Islamic Family Law Act/Enactment and the practice of the Malaysian courts deliberating this right of a child will be the focus of the paper. Cases decided at the Shariah and Civil Courts relating to the claim of child’s maintenance will be analysed to study the practice of it in Malaysia as well as its problems and restrictions. It is hoped that by analysing the current the legal provisions on child’s maintenance and its practice in Malaysia, suggestions and recommendations can be made to further improve this area of law. Hence, the right of a child to maintenance as provided for under the law will be safeguarded

Revisiting the administration of family justice in the family court in Malaysia

A ‘family court’ is generally known as a separate division of court that specifically deals with family disputes. In regulating family matters, there is no doubt that the existence of family law as a body of law is very important. However, the effectiveness of this law also depends on the institution that administers the law. In this context, it is the family court. The administration of family justice by the family court reflects the philosophy of its creation that normally takes into consideration the unique characteristics of family institution and family conflicts. Accordingly, the family court should be vested with a comprehensive jurisdiction in family matters and must be able to handle family matters effectively. The family court is not only act as a judicial institution that determine legal issues, but it also provides holistic approach and use therapeutic jurisprudence in the resolution of family disputes. In Malaysia, where dual system of family law applies, family matters of non-Muslims are heard at the civil courts, whereas for Muslims, it is the Syariah courts. For the purpose of this paper, only the civil courts are addressed. The creation of a family court at the Kuala Lumpur High Court as a specialized division of court is among the latest development in the administration of non-Muslim family law in Malaysia. This study was conducted mainly through library-based research. Field works in the form of interview and study visit were also carried out

أثر العدول عن الخطبة في الفقه الشافعي والقانون الماليزي

ملخص البحث: يتناول هذا البحث أثر العدول عن الخطبة في الفقه الشافعي وقانون الأسرة الماليزي، باعتبار أن المذهب السائد في هذه المنطقة هو المذهب الشافعي، إلا أننا نجد في بعض المسائل يرجعون إلى المذاهب الأخرى المعتمدة في الفقه الإسلامي. وقد احتوى هذا البحث على تعريف الخِطبة وحكمها والعدول عنها بصورة مختصرة لعدم وجود فروق واضحة بين المذاهب. وقد ركز البحث على أثر العدول عن الخطبة فيما يتعلق بالهدايا والتعويض والنفقة خلال فترة الخطوبة. وتكمن مشكلة الدراسة في مدى توافق قانون الأسرة الماليزي مع المذهب الشافعي، أما المنهج المتبع في الدراسة هو المنهج الاستقرائي والمنهج التحليلي، وقد توصل البحث إلى عدم وجود فروق كبيرة بين قانون الأسرة الماليزي والفقه الشافعي