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Matrimonial offences in the light of Islamic law
No full textBased on the principle that family is the main entity of the society, this paper highlights the importance of the marital relationship in Islam. As the foundation of the family institution, it is important to provide legal protection to the marital relationship from any harmful act that may damage and threaten the stability of the family. As Islamic law is the main source of family law in most Muslim countries, the analysis of Islamic legal provisions in respect to the marriage contract and its legal effects between the spouses has lead the author to define and classify the matrimonial offences that damage the matrimonial relationship and subsequently the family and society. Based on the general theory of offences in Islamic law and compared (by way of analogy) to the legal effects of a valid marriage contract, matrimonial offences are defined as legally prohibited acts strictly forbidden by Allah relating to the conjugal rights resulting from a valid marriage contract and become fully ascertained after having sexual intercourse. Providing such provisions in a legislative form will enhance the position of the matrimonial relationship as the foundation of the family inadvertently strengthening the society.
Key words: Family Law, Islamic Law, Marital Relationship, Matrimonial Offences
Non-registration of Muslim marriages in Malaysia: socio-legal implication
Get PDFThere are no single provisions found in the Al Qur´an or as Sunnah as relates to registration of marriage, but there are equally no prohibitory provisions as well. The purpose of the enforcement of registration is to remove the difficulty of proving the marriage. As such, the obligation to register marriage is important as it is for the benefit (maslahah) and protection of the society at large. The effect of unregistered marriage is not felt until and unless when the parties face matrimonial difficulties. The SharÊÑah court has no jurisdiction to entertain their cases until it is proven that their marriage is registered or deemed registered or valid according hukum shara´. Therefore, if the parties cannot prove the validity of their marriage by the assistance of the person solemnizing the marriage or by the witnesses of their marriage, the registration of the marriage will facilitate to prove the existence of their marriage. This article is to establish the importance of registration and the effect of non-registration that will lead to various socio-legal implications
Registration as legal mechanism to sustain institution of marriage
No full textIn Malaysia, different societies express themselves in different ways in performing a marriage
ceremony.
The non-Muslims in Malaysia practices the dual system of marriage (namely the
customary marriage and the civil law of marriage), up to 1 March 1982. After that date, the Law
Reform (Marriage and Divorce) Act 1976 came into effect, and is practised until today.
Previously, marriage under the Chinese customary law was recognised in Peninsular Malaysia by
the application of the principle that where the local law was wholly unsuited to the conditions of
the parties, due to peculiarities of religious opinion and usages, then their own laws and or
usages were applied to them. As such, it is observed that the validity of a Chinese customary
marriage merely requires a consensual marriage and the requirements of a ceremony and a repute
of marriage are evidentiary only and not essential. Unlike the Chinese customary marriage, the
priest solemnising the marriage and the expert evidence findings, relating to the rites and
ceremony rather than the mere intention to form a permanent union, determines the validity of a
Hindu marriage. The discussion proves that requirement of registration is introduced as a
medium to facilitate proof of marriage for the non-Muslims. It is initiated to avoid uncertainty
relating to the status of marriage especially involving marriage solemnized according to customs.
The objective of this paper is to establish that the requirement of registration of marriage is vital
for the sustenance of marriage. It is to manage legal issues pertaining to it and to avoid disputes,
which may give rise to uncertainty in terms of whether a marriage has occurred. It is also to
enlighten the people at large the importance of registration as a legal protection mantle assisting
them (especially the wives and children) when matrimonial difficulties crop up
Cross border marriage (CBM): a comparative study on the profiles and factors of CBM among Malays in Malaysia
Get PDFCross border marriage (CBM) is one of the solutions to legalise a marriage and is a common phenomenon involving both monogamous and polygamous eloped marriages. This polemic issue has occurred among the Malays (mainly among the followers of Shafie Mazhab) since a long time ago and still continues. This article examines the issue that CBM, which are rampant at present, will lead to uncertainty to the validity of marriages. This uncertainty will lead to problems in determining the status of the marriage and other claims in the marriages including matters involving children and inheritance. This article discusses factors that influence parties to contract CBM and violate the specified law and procedures. Qualitative and quantitative methods were employed in collecting information from the Shariah courts’ files pertaining to the profiles of parties to CBM in four selected states in Malaysia namely Kedah, Kelantan, Selangor and Johor. Data were collected using questionaires developed based on the Islamic Family Law Act and other legal literatures. Data were analysed by using descriptive statistical technique which revealed the general pattern of all variables understudied. The findings from this research are expected to fill in the gap in socio-legal literature in relation to Muslim marriages. It could provide valid justification to support the National Family Policy and to design any regulatory framework relating to the implementation and enforcement of Islamic family law in Malaysia. It is important to marry according to the law and procedures that have been laid down under the Islamic Family Law Act and Enactments so that appropriate protection provided under the law can be extended, especially to women and children whenever matrimonial problems arise
Hak-hak isteri selepas perceraian di bawah Enakmen Undang-undang Keluarga Islam Perak 2004 = Rights of divorce woman upon divorced under the Islamic Family Law Enactment of Perak 2004
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