“Divorce Cases in Malaysia : Take Marriage Seriously”
11th May 2010
The statistics shown by JAKIM Department in “He Forgets the Food, she the sugar; they divorce”- New Straits Time(NST), 11 May 2010 at page 9 shows a disturbing divorce trend in Malaysia.
In order to reduce the divorce rate, there is a need to address three fundamental issues in a marriage institution/relationship at the outset:
1) understanding the cause of ‘irreconcilable differences’ reason ,
2) revamping the current Pre and Post-marriage Training Course and
3) tackling Islam-conversion divorce cases.
Firstly, ‘irreconcilable differences’ are, for all purposes and intent, similar to the phrase ‘irretrievably broken down‘ ground for a divorce application in section 53(1) of the Law Reform (Marriage And Divorce) Act 1976(Law Reform). The ‘irretrievably broken down‘ ground is always used as a legal reason given by a party seeking to annul a valid marriage and more often than not, facilitates the success rate in a divorce application.
For the estranged couple, there is a need for the divorce solicitor/lawyer to explain to the applicant concerned that outside the realm section 53(1) of the Law Reform, there are no differences that cannot be reconciled. The compulsory counseling/reconciliation session provided for under section 55(‘provisions designed to encourage reconciliation’) of the said Law Reform provides for this opportunity. Divorce lawyers must therefore take holistic efforts to ensure that the estranged parties could give each other a chance to work things out instead of going for a straight divorce notwithstanding the divorce proceedings.
Irreconcilable differences may in fact include all the other causes shown in the statistics by Jakim above. If so, such differences are not at all totally ‘irreconcilable’ because they are practically reconcilable if each party is willing to work hard to preserve the marriage based on their ‘true love’ for each other.
Secondly, it must be made known that the current Pre-marriage Training Course (kursus kahwin) is flawed in many respects and the SMART-START Post-marriage Course for newly-weds will not solve the weakness in the Pre-marriage Training Course unless a legal or ‘Family Law component’ is incorporated into its training modules. JAKIM and the National Population & Family Development Board, etc must therefore take strategic cognizance of this vital legal component so that estranged couple may seek reconciliation and legal redress/advice at the right forum/venue with a view to preserve their marriage institution.
Thirdly, divorce by Islam conversion under section 51 (‘dissolution on ground of conversion to Islam’) of the Law Reform remains unsatisfactory based on current trend in judicial decisions and a rather vague track chartered under Article 121(1)(A) of the Federal Constitution which hitherto, failed to provide a clear path in resolving Islam conversion divorces.
Within the muslim family law confines, muslim couples must give serious thoughts to the Book of Sunan Abu Daud which reported that the Prophet Muhammad once said :’Of all lawful acts, the most detestable to God is divorce’. Therefore, divorce should not be the first resort when any difference between a couple emerges….” Similarly, if a divorce in inevitable, they must observe the principle laid down in the al-Quran which advocates that ‘the parties should either hold together on equitable terms (ma’ruf) or separate with kindness (ihsan)’ (Al-Quran, Surah al-Baqarah, 2:229).
Jeong Chun Phuoc
And an advocate in strategic environmental intelligence(SEI)
He is also a reader in Islamic law and Islamic Competitive Intelligence(ICI)
He can be reached at [email protected]