Minimum age of marriage under Islamic Law and the Islamic Family Law (Federal Territories) Act 1984: a preliminary study on the ideal age of marriage in Malaysia

Marriage is a sacred institution the goal of which is to achieve mutual cooperation and happiness among the parties. As a religious covenant, marriage is to be contracted based on several essential requirements and conditions. Under Islamic law, the age factor is not listed as one of the requirements for a valid marriage. This is based on the fact that neither the Quran nor the Sunnah that indicates a specific age of marriage that may affect marriage validity. This has led to an assumption that there is no specific age of marriage under Islamic law. Nevertheless, the Muslim jurists are in agreement that a person is recommended to marry at an age where he or she understands the nature of the marriage contract, so that the marriage goals can be achieved. The issue arises as to what is the minimum age of marriage where a person is able to comprehend such marriage relationship. This paper seeks to primarily examine the issue of minimum age of marriage in Malaysia and the most suitable age of marriage under Islamic law that governs Muslims in Malaysia. The examination extends to juristic discourse on that matter and the incorporation of the Hanafi view and its significance on the minimum age of marriage that is recognized by the law in Malaysia. The research adopts a qualitative research methodology which primarily includes an examination of the primary and secondary sources relating to the subject matter. The research provides suggestions for the improvement of the law on minimum age of marriage in Malaysia where relevant and necessary

Intercountry Adoption in Malaysia and Morocco: A New Frontier

Intercountry adoption offers a family-based care option for children in need of care and protection. It allows them to find loving and permanent homes outside their birth country, providing them with stability, support, and a sense of belonging essential for their well-being. The Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption 1993 (Hague Convention 1993) serves as the primary international legal instrument governing intercountry adoption. Despite its importance, intercountry adoption remains relatively uncommon in Malaysia, as the country lacks specific statutory provisions and is not a signatory to the Hague Convention 1993. The purpose of this study is to examine the current state of intercountry adoption in Malaysia and Morocco and explore the viability of intercountry adoption as a child protection measure. The study involves interviews with relevant departments and an examination of Malaysia's current adoption laws. Additionally, the study analyses the international legal framework, including the Hague Convention 1993 and the United Nations Convention on the Rights of the Child 1989 (UNCRC) to provide a comprehensive understanding of the context surrounding intercountry adoption. Furthermore, this paper offers a comparative analysis of Morocco's intercountry kafalah system, which recognises kafalah as an alternative to legal adoption based on Islamic law. The findings of this study will offer valuable insights and recommendations for enhancing Malaysia's approach to intercountry adoption. By considering best practices and international standards, this research seeks to ensure the well-being and protection of children in need of care and protection, promoting their access to a stable and nurturing family environment

Intercountry Adoption in Malaysia and Morocco: A New Frontier

Intercountry adoption offers a family-based care option for children in need of care and protection. It allows them to find loving and permanent homes outside their birth country, providing them with stability, support, and a sense of belonging essential for their well-being. The Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption 1993 (Hague Convention 1993) serves as the primary international legal instrument governing intercountry adoption. Despite its importance, intercountry adoption remains relatively uncommon in Malaysia, as the country lacks specific statutory provisions and is not a signatory to the Hague Convention 1993. The purpose of this study is to examine the current state of intercountry adoption in Malaysia and Morocco and explore the viability of intercountry adoption as a child protection measure. The study involves interviews with relevant departments and an examination of Malaysia's current adoption laws. Additionally, the study analyses the international legal framework, including the Hague Convention 1993 and the United Nations Convention on the Rights of the Child 1989 (UNCRC) to provide a comprehensive understanding of the context surrounding intercountry adoption. Furthermore, this paper offers a comparative analysis of Morocco's intercountry kafalah system, which recognises kafalah as an alternative to legal adoption based on Islamic law. The findings of this study will offer valuable insights and recommendations for enhancing Malaysia's approach to intercountry adoption. By considering best practices and international standards, this research seeks to ensure the well-being and protection of children in need of care and protection, promoting their access to a stable and nurturing family environment

An appraisal of child protection through adoption under Malaysian registration of Adoptions Act 1952 and Kafalah in Morocco

This paper deals with the Islamic perspective on child protection for parentless children in Malaysia and Morocco through adoption and kafalah, respectively. As regards adoption in Malaysia, this paper seeks to examine adoption as the means of child protection based on the law and practice of adoption for Muslims in Malaysia, particularly in the Registration of Adoptions Act 1952 (RAA). The paper further investigates the kafalah system in Morocco so as to provide a comparative overview of child protection for parentless children in a Muslim country. Furthermore, the paper examines the significant differences of the legal framework for adoption for Muslims in Malaysia and kafalah system in Morocco. Finally, the paper provides suggestions for improvement of adoption under the RAA as an alternative care option for parentless children in Malaysia. This study also found that family based care, such as adoption, foster care and kafalah is often preferred when deciding a placement for parentless children instead of an institutional setting. The paper adopts a qualitative research primarily based on a library research

The role of the private sector in providing foster care services for children without parental care in Malaysia

The paper deals with the role of private sector or non-governmental organisa-tion in providing welfare services to children without families through alternative care options. These children may include orphans as well as abandoned, abused and ne-glected children who basically have been deprived of parental care and family envi-ronment. According to the United Nations Convention on the Rights of the Child 1989, alternative care options may consist of foster placement, kafālah of Islamic law, adop-tion and institutional care. In this regard, this paper discusses the notion of each of the alternative care options which can be divided to institutional care and family based care. The paper also analyses in brief the relevant law and policy on family based care, namely, foster care and adoption in Malaysia such as the Child Act 2001, Adoption Act 1952 and Registration of Adoptions Act 1952. The paper further examines the role of private sector in providing relevant alternative care options for children without fam-ilies in Malaysia. The paper also highlights the role of private sector in arranging family based care for these children through foster care and adoption. For instance, there is cooperation between the government, Malaysian Social Welfare Department and a non-governmental organisation, OrphanCare, to place children from institutional care in foster care and adoption through deinstitutionalisation process. Finally, the paper investigates the challenges in encouraging private sector to arrange family based care for children without families through foster care and adoption. These challenges may include in raising awareness of the importance of family setting and inadequacy of the law and policy in providing alternative care for children without families. This study adopts a qualitative research method which is mainly based on library research. This paper found that family based care through foster care and adoption for children with-out families are preferred over institutional care. However, there are several issues that need to be addressed before institutionalised children can be effectively placed in foster care and adoption. Significantly, the private sector welfare plays an important role in the transition of these institutionalised children to a family setting

The Role of private sector in providing foster care service for children without parental care in Malaysia

The paper deals with the role of private sector or non-governmental organisa-tion in providing welfare services to children without families through alternative care options. These children may include orphans as well as abandoned, abused and ne-glected children who basically have been deprived of parental care and family envi-ronment. According to the United Nations Convention on the Rights of the Child 1989, alternative care options may consist of foster placement, kafālah of Islamic law, adop-tion and institutional care. In this regard, this paper discusses the notion of each of the alternative care options which can be divided to institutional care and family based care. The paper also analyses in brief the relevant law and policy on family based care, namely, foster care and adoption in Malaysia such as the Child Act 2001, Adoption Act 1952 and Registration of Adoptions Act 1952. The paper further examines the role of private sector in providing relevant alternative care options for children without fam-ilies in Malaysia. The paper also highlights the role of private sector in arranging family based care for these children through foster care and adoption. For instance, there is cooperation between the government, Malaysian Social Welfare Department and a non-governmental organisation, OrphanCare, to place children from institutional care in foster care and adoption through deinstitutionalisation process. Finally, the paper investigates the challenges in encouraging private sector to arrange family based care for children without families through foster care and adoption. These challenges may include in raising awareness of the importance of family setting and inadequacy of the law and policy in providing alternative care for children without families. This study adopts a qualitative research method which is mainly based on library research. This paper found that family based care through foster care and adoption for children with-out families are preferred over institutional care. However, there are several issues that need to be addressed before institutionalised children can be effectively placed in foster care and adoption. Significantly, the private sector welfare plays an important role in the transition of these institutionalised children to a family setting

Betrothal and general damages for humiliation: an appraisal on harmonisation of Shari'ah and Civil Law

Betrothal is an agreement or a promise to marry. Both Islamic and Civil Law recognize betrothal as a significant plan before and towards a marriage contract. Both laws are also in agreement that in the event of breach of betrothal, the parties in default is liable to certain damages and compensation. Nevertheless, there are a different principle as regards to general damages for humiliation and embarrassment. This paper basically deals with betrothal and the legal effect of breach of betrothal under Islamic and Civil law. The research is a qualitative research, adopting a library research and content analysis. The research seeks to study generally on the position of betrothal under both Islamic and civil law and the effect of breach of betrothal on the parties who are at fault. This paper will further examine on items claimable as compensation under both laws including general damages for humiliation. The paper will further analyze certain points of laws on damages in breach of betrothal under both laws which are in harmony and differing to one another. Finally the paper will highlight on possibility of harmonisation between Islamic and Civil Law particularly on general damages of humiliation

Reconstruction of Restitution as an Additional Punishment for Victims of Criminal Acts

Victims of criminal acts, as individuals who suffer harm, deserve comprehensive protection, particularly in the process of recovering their losses. The enactment of the National Criminal Code has recognised this need by including compensation as an additional form of punishment. However, the current framework has significant shortcomings. Since this additional punishment is not mandatory, victims are not guaranteed compensation, undermining the principle of justice. This study explores the need to reform the existing system to ensure fair and effective restitution for victims. Based on normative research utilising a statutory approach and interpretative analysis, the findings suggest that positioning criminal compensation as a primary form of punishment within the National Criminal Code would better serve justice. By elevating criminal compensation to a primary punishment, the system would provide victims with greater certainty in securing recovery from the perpetrator

Court as a means of dispute resolution in adoption cases in Malaysia: An appraisal of the Syariah Court’s decision on dispute relating to custody and maintenance of adopted children

Children generation are depending on adult as their guardian due to their vulnerability. They are the subject of custody and maintenance. Under Islamic law, parents are the most common guardian and are responsible for children’s custody and maintenance. Nevertheless, there are categories of children who are parentless or not living with their biological parents due to certain problems or situation like adoption. It follows that, as normal biological children, adopted children are also entitled to custody and maintenance in particular from their adoptive parents. The issues however arise whenever there is failure or neglect of care and maintenance of adopted children especially whenever the adopted children reached certain ages or in the event of divorce of the adoptive parents. This paper deals with court as a means to resolve dispute in matters relating to custody and maintenance of adopted children especially in Syariah Court in Malaysia. Examination will focus on Syariah Court’s decision when dealing with those issues. A comparison with other jurisdiction where relevant and necessary will also be done especially to provide a good findings for the pape

Minimum age of marriage under Islamic law and the Islamic family law (Federal Territories) Act 1984: a preliminary study on an ideal age of marriage in Malaysia

Marriage is a sacred institution which goal is to achieve mutual cooperation and happiness among the parties. As a religious covenant, marriage is to be contracted based on several essential requirements and conditions. Under Islamic law, age factor is not listed as one of marriage requirement. There is no text of the Quran or the Sunnah that indicate certain specific age of marriage that may affect marriage validity. This lead to an understanding that there is no specific age of marriage under Islamic law. Nevertheless, the Muslim jurists are in agreement that a person is recommended to marry at the age where he or she understands the nature of the marriage contract, so that the marriage goal can be achieved. The issue arises as to what is the minimum age of marriage where a person is able to comprehend such marriage relationship. This paper seeks to primarily examine the issue of minimum age of marriage in Malaysia and the most suitable age of marriage under Islamic law that governs Muslims in Malaysia. Examination extends to juristic discourse on that matter and the incorporation of the Hanafis view and its significance in the minimum age of marriage that is recognized by the law in Malaysia. The research adopts qualitative research methodology where many of the materials will be based in the library. The research will provide suggestion for improvement of the law on minimum age of marriage in Malaysia where relevant and necessary