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malaysiaFAMILY DISPUTE RESOLUTION

Southeastern Asia, peninsula bordering Thailand and bordering Indonesia, Brunei, and the South China Sea, south of Vietnam2

Legal BackgroundType of Government: Constitutional MonarchyCentral government13 State governments

Central governmentChief of State: Yang di-Pertuan Agong king/constitutional monarch; primarily ceremonialelected by and from the hereditary rulers of nine of the states

Prime ministerdesignated from among the members of the House of Representatives

Cabinet of ministersappointed by the prime minister from among the members of Parliament with consent of the king

State GovernmentSultans Hereditary rulersExcept Malacca, Penang, Sabah and SerawakGovernors appointed by government

LegislativeParliament bicameralSenate or Dewan NegaraHouse of Representatives or Dewan Rakyat

Each state has legislature

JudicialDual judicial hierarchyCivil courtsReligious courts

Federal Court

Legal System of MalaysiaMixed legal system of: English common law - relies heavily on case law or judicial opinionsIslamic lawCustomary law - in matters of personal law, such as marriage and divorce and inheritance

Judicial review of legislative acts in the Supreme CourtAt the request of supreme head of the federation

Malaysian LegislationMixed legal system of: Federal ConstitutionConstitution of each of the 13 statesFederal acts of the parliamentState enactmentsSubsidiary legislationCase lawConstitution of MalaysiaFederal list regarding Civil and Criminal law and procedure and the administration of justice (4(e))Subject to paragraph (ii), the following:(Contract, partnership, agency and other special contract; xxxx equity and trusts, marriage, divorce, legitimacy; married womens property and status; xxxx arbitration; xxxx age of majority; infants and minors; adoption; succession, testate and intestate; xxxx;(the matters mentioned in paragraph (i) do not include Islamic personal law relating to marriage, divorce, guardianship, maintenance, adoption, legitimacy, family law, gifts or succession, testate and intestate.

Constitution of MalaysiaState List (1)Except with respect to the Federal Territories of Kuala Lumpur and Labuan, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; xxxx the constitution, organisation and procedure of Syariah courts, which shall have jurisdiction only over person professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law*, the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine Malay custom.Constitution of MalaysiaSupplement to State List for State of Sabah and SarawakNative law and custom, including the personal law relating to marriage, divorce, guardianship, maintenance, adoption, legitimacy, family law, gifts or succession testate or intestate; registration of adoptions under native law or custom; the determination of matters of native law or custom; the constitution, organization and procedure of native courts (including the right of audience in such courts), and the jurisdiction and powers of such courts, which shall extend only to the matters included in this paragraph and shall not include jurisdiction in respect of offences except in so far as conferred by federal law.Constitution of MalaysiaSupplement to Concurrent List for State of Sabah and SarawakPersonal law relating to marriage, divorce, guardianship, maintenance, adoption, legitimacy, family law, gifts or succession testate and intestate.Islamic Family Law (Federal Territories) Act 1984Act 303 king/constitutional monarch; primarily ceremonialExclusive applicability to persons professing the Islam faithUnder the exclusive jurisdiction of the Syariah CourtsFormalities in contracting the marriage (License, Solemnities, Registration), as well as the Prohibited relationships, are practically the same with the non-Muslim lawDissolution of Marriage, Maintenance of Wife, Children and Others, Guardianship

Act 303Marriage of a woman14. (1) No woman shall, during the subsistence of her marriage to a man, be married to any other man. (2) Where the woman is a jandasubject to paragraph (c), she shall not, at any time prior to the expiry of the period of iddah, which shall be calculated in accordance with Hukum Syarak, be married to any person other than to the man from whom she was last divorced;Act 303(b) she shall not be married unless she has produceda certificate of divorce lawfully issued under the law for the time being in force; ora certified copy of the entry relating to her divorce in the appropriate register of divorce; ora certificate, which may, upon her application, be granted after due inquiry by the Syariah Judge having jurisdiction in the place where the application is made, to the effect that she is a janda;

Act 303(c) if the divorce was by ba-in kubra, that is to say, three talaq, she shall not be remarried to her previous husband, unless she has been lawfully married to some other person and the marriage has been consummated and later lawfully dissolved, and the period of iddah has expired.

Act 303(3) If the woman alleges she was divorced before the marriage had been consummated, she shall not, during the ordinary period of iddah for a divorce, be married to any person other than her previous husband, except with the permission of the Syariah Judge having jurisdiction in the place where she resides.(4) Where the woman is a widowshe shall not be married to any person at any time prior to the expiration of the period of iddah, which shall be calculated in accordance with Hukum Syarak;she shall not be married unless she has produced a certificate of the death of her late husband or otherwise proved his death.

Act 303Dissolution of MarriageChange of religionDivorce by talaq or by order

Law Reform (Marriage and Divorce) Act LRA 1976Specifically excludes its application to persons professing the religion of IslamMarriage, Divorce, Protection of ChildrenValidity of marriage are essentially the same with the Philippines (Requisites, Prohibited relationship, Solemnities)

LRA 1976DivorceDissolution on ground of conversion to IslamDissolution by mutual consentBreakdown of marriageJudicial SeparationNullity of MarriageVoidVoidableProtection of ChildrenLRA 1976Dissolution on ground of conversion to Islam51. (1) Where one party to a marriage has converted to Islam, the other party who has not so converted may petition for divorce:Provided that no petition under this section shall be presented before the expiration of the period of three months from the date of the conversion.(2) The Court upon dissolving the marriage may make provision for the wife or husband, and for the support, care and custody of the children of the marriage, if any, and may attach any conditions to the decree of the dissolution as it thinks fit.(3) Section 50 shall not apply to any petition for divorce under this section.This section enables a non-converting spouse to petition for divorce in the Civil Courts against the converted spouse on the ground of conversion to Islam. Upon such divorce, the non-converting spouse may seek child rights, financial support and property division orders against the converted spouse.

In essence, it preserves the rights of the non-converting spouse to seek ancillary reliefs consequent upon a divorce against a converted spouse, notwithstandting the general inapplicability of the law to Muslims.24

GENERAL LAWSON ALTERNATIVE DISPUTE RESOLUTIONMediation Bill 2012General provisionsAn act to promote and encourage mediation as a method of alternative dispute resolutionInapplicable to:Mediation conducted by a judge or magistrate or officer of the court pursuant to civil actionMediation conducted by the Legal Aid Department27Mediation Bill 2012Parties voluntarily submit themselves to mediationParties choose the mediatiorSubject to relevant qualifications and experienceSatisfy the requirements of an institutionSettlement agreement, if signed by the parties, is binding on the parties28Arbitration ActDomestic arbitration as well as international arbitrationGoverns any dispute which the parties agree to submit to arbitrationInapplicable if there is a written law to the contraryParties are free to appoint arbitratorArbitral tribunalThe award made by arbitrator is binding29Practice Direction No. 5 Judge-led MediationSuspension of proceedingsJurisdiction passes to another judgeCourt-referred MediationMediator is chosen from a list of certified mediators furnished by the MMCParties may choose to be bound30Malaysian Mediation CentreIt is established under the auspices of the Bar Council with the objectives of promoting Mediation as a means of alternative dispute resolution and to provide a proper avenue for successful dispute resolution.Currently the Centre accepts civil, commercial and matrimonial matters and intends to expand the scope to other matters at a later stage31Kuala Lumpur Court Mediation CentreThe court-annexed mediation program is a free mediation program using judges as mediators to help disputing parties in litigation to find a solution. It is a service provided by the judiciary as an alternative to a trial which is a win-lose proposition.32Kuala Lumpur Court Mediation CentreThe High Court and the Sessions Court in Kuala Lumpur, either on its own motion or upon the request of any party, make an Order of Referral to the Mediation Centre of any action that has been instituted in the civil court which is suitable for mediation.33Islamic dispute resolutionNasihah (Counselling); Sulh (Negotiation, mediation, conciliation, compromise of action); Tahkim (Arbitration); Med-Arb (A process that begins with mediation and ends in arbitration); Muhtasib (Ombudsman); Wali al-Mazalim (Chancellor or Ombudsman Judge); Fatwa of Mufti (Expert Determination); Med-Ex (A combination of mediation and expert determination); and Qada (adjudication).LAWS ON MARITAL CONFLICTAND ALTERNATIVE DISPUTE RESOLUTIONLaw Reform (Marriage and Divorce) Act 1976Provisions designed to encourage reconciliationContents of divorce petitionRequirement of reference to conciliatory body before petition for divorce36Law Reform (Marriage and Divorce) Act 1976Provision may be made by rules of court for requiring that before the presentation of a petition for divorce the petitioner shall have recourse to the assistance and advice of such persons or bodies as may be made available for the purpose of effecting a reconciliation between parties to a marriage who have become estranged37Law Reform (Marriage and Divorce) Act 1976If at any stage of proceedings for divorce it appears to the court that there is a reasonable possibility of a reconciliation between the parties to the marriage, the court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a reconciliation38Law Reform (Marriage and Divorce) Act 1976Every petition for a divorce shall state what steps had been taken to effect a reconciliationNo person shall petition for divorce, except under sections 51 and 52, unless he or she has first referred the matrimonial difficulty to a conciliatory body and that body has certified that it has failed to reconcile the parties.39Islamic Family Law ActDivorce by talaq or by orderConciliation of partiesArbitration by HakamClose relative or other person appointed by the courtMay pronounce one talaqAlso known as Suhl40Islamic Family Law ActA husband or a wife who desires divorce shall present an application for divorce to the Court in the prescribed form, accompanied by a declaration containing a statement as to whether any, and, if so, what steps had been taken to effect reconciliation41Islamic Family Law ActWhere the other party does not consent to the divorce or it appears to the Court that there is reasonable possibility of a reconciliation between the parties, the Court shall as soon as possible appoint a conciliatory committee consisting of a Religious Officer as Chairman and two other persons, one to act for the husband and the other for the wife, and refer the case to the committee42Islamic Family Law ActIf satisfied that there are constant quarrels (shiqaq) between the parties to a marriage, the Court may appoint in accordance with Hukum Syarak two arbitrators or Hakam to act for the husband and wife respectively.In appointing the Hakam under subsection (1), the Court shall, where possible, give preference to close relatives of the parties having knowledge of the circumstances of the case.43Islamic Family Law ActIf the Hakam are of the opinion that the parties should be divorced but are unable for any reason to order a divorce, the Court shall appoint other Hakam and shall confer on them authority to order a divorce and shall, if they do so, record the order and send a certified copy of the record to the appropriate Registrar and to the Chief Registrar for registration44

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46LAWS ON CHILD CUSTODYAND ALTERNATIVE DISPUTE RESOLUTIONIslamic Family Law ActPhysical Custody A child below the age of mumaiyyiz (discernment 9-11 years for a daughter and 7-9 years for a son) will stay with the mother, A child above that age has the right to choose between the two parentsDisqualify persons who are non-Muslims or not practising Muslims from being granted custody of children

48Islamic Family Law ActLegal Guardianship The father is the first and primary natural guardian of the person and property of his minor child.Provided that he is a Muslim, an adult, sane, and worthy of trust.49Guardianship of Infants Act1961The father is the preferred guardian1999In relation to the custody or upbringing of an infant or the administration of any property belonging to or held in trust for an infant or the application of the income of any such property, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal 50ADR in Custody MattersGenerally there is no mandatory provision on alternative dispute resolution regarding custodyUsually included in settlements regarding divorce51LAWS ON VIOLENCE AGAINST WOMEN AND CHILDRENAND ALTERNATIVE DISPUTE RESOLUTIONDomestic Violence Act of 1994Section 11The parties concerned be referred to a conciliatory bodyIn this section conciliatory body includes bodies providing counselling services set up under the Department of Social Welfare and, in the case where the parties are Muslims, also includes those set up under the Islamic Religious Affairs Department concerned53ADR in Violence Against Women and ChildrenNo provision on ADR regarding unmarried parties.There are only penal laws54Comparative analysisPhilippines and malaysiaphilippinesState policy as embodied in the 1987 ConstitutionFamily CodeDomicileProfessionAdministration of propertyParental authority and guardianshipCivil Code provisionsFoundationBasic social institutionEarnest efforts towards compromisePrescriptionCompromisephilippinesRules on Declaration of Nullity of Marriages, Annulment, Legal SeparationEstablishment of Family CourtsCourt-Annexed Family Mediation and the Philippine Mediation Center

malaysiaState policy specifically geared towards reconciliationTwo sets of laws that are applicable in personal matters of intestacy, marriage, divorce, custody of children and division of assets on the breakdown of a marriageMuslims Non-MuslimsLRA and the Islamic Family Law ActFamily disputes are heard by the ordinary civil courts (except in Kuala Lumpur, where one specific civil court has been designated to hear family disputes) and the Syariahcourts

58MALAYSIA5. The main Malaysian statutes governing the breakdown of marriage and the welfare of children (for non-Muslims) are:Law Reform (Marriage & Divorce) Act 1976 (Act 164) (LRA).Guardianship of Infants Act 1961 (GIA).Child Act 2001, which deals primarily with children in need of care, protection and rehabilitation, and related matters.Married Women Act 1957.Married Women & Children (Maintenance) Act 1950 (MWCMA).Married Women & Children (Enforcement of Maintenance) Act 1968.Malaysia6. Malaysia has had an administrative form of mandatory family mediation service for Muslims known as Sulh since 2002. A similar service has been provided for the substantial non-Muslim population, albeit not as extensive. MalaysiaOtherwise, there is no statutory compulsion for mediation in Malaysia. However, following a Practice Direction dated 13 August 2010, after the close of pleadings in a matrimonial dispute, the court will normally fix a date for an in-court mediation, either before a registrar or a judge with solicitors present. If the parties do reach agreement on terms, a consent order is recorded.

comparisonBoth have state policies that are geared towards the preservation of the familyMediation more mandatory and more extensive in the PhilippinesMore centralized laws on marriage and family relations in MalaysiaDual system of laws has given rise to much controversyMuslim and non-Muslim marriages