Update: This article was written on 13 July 2017. However, on 7 August 2017, the Government withdrew the Law Reform (Marriage and Divorce) (Amendment) Bill 2016. On 8 August 2017, the Bill was retabled for reading without the inclusion of Section 88A.
Marriage and divorce have traditionally been straightforward scenarios. In Malaysia, these affairs are governed by the Law Reform (Marriage and Divorce) Act 1976 (“LRA 1976”). However, this simple state of affairs turns murky when it involves the conversion of one party to the Islamic faith after marriage. In Malaysia, a dual system exists to accommodate the multitudes of faith’s present. In a nutshell there are civil courts and there are Syariah courts. Typically, the availability of a dual-court system poses no problems but the lines demarcating familial relationships and religion are easily blurred. This is where problems begin to manifest.
In light of landmark cases such as the case involving Indira Gandhi, the government has tabled a Law Reform (Marriage and Divorce) (Amendment) Bill 2016 (“LRB 2016”) in November last year. As Prime Minister Najib stated, there is a current overlap of jurisdiction between the civil and Syariah courts which needs to be addressed.
This article will go on to highlight two controversial sections of LRA 1976 namely section 51 and section 88 LRA 1976 and its proposed amendments in the LRB 2016.
Dissolution of Marriage on Grounds of Conversion
Observing section 51 of the 1976 Act, this section provides that when one party to a marriage converts to Islam, the non-converting party is allowed to petition for divorce. However, the same right is not extended to the Muslim convert. This has attracted the ire of many as this section effectively removes the locus standi of a Muslim convert in both the civil and Shariah courts; the civil courts are unable to entertain a divorce petition from the convert and Shariah courts have no jurisdiction over a non-Muslim.
Section 4 presented under the LRB 2016 aims to rectify this imbalance. In essence, it removes the unilateral ability to petition for a divorce and grants equal standings to both parties, convert and not.
Conversion of Minor Children
Another important amendment presented involves the religious status of children. Section 7 LRB 2016 proposes the insertion of a new section, being section 88A into the LRA 1976. This amendment is proposed to be the backdrop of what is commonly termed as “conversion cases”.
The legal tussles and conflicting decisions can be traced back to the case of Chang Ah Mee v Jabatan Hal Ehwal Agama Islam & Ors  1 MLRS 46 where the court ruled that a legal conversion of a child required the consent of both parents i.e father and mother. However, this decision was rejected in the case of Subashini Rajasingam v Saravanan Thangathoray & Other Appeals  3 MLRA 81 where it was ruled that only one parent need consent to a conversion.
This saga has recently culminated in the case of Indira Gandhi where in November last year, with the Federal Court is reserving its judgment on application of Indira Gandhi against the unilateral conversion of her children to Islam by her ex-husband after the contrasting decisions provided by the Ipoh High Court and subsequent Court of Appeal.
As such, the proposed section 88A addresses the issues of these conversion cases by providing that:
88A Religion of Child
“Where a party to a marriage has converted to Islam, the religion of any child of the marriage shall remain as the religion of the parties to the marriage prior to conversion except where both parties to the marriage agree to a conversion of the child to Islam subject always to the wishes of the child where he or she has attained the age of eighteen years.”
These amendments which are currently proceeding through Parliament would bring much needed clarity to the current incongruous state of laws.
This article was written by Aileen Lau (Partner) and Denise Choo (Intern). Aileen heads the family law practice at Donovan & Ho. She has extensive experience in both contested and uncontested divorce proceedings, and has advised clients on family law matters ranging from child custody, payment of alimonies and division of matrimonial property.
Have a question? Feel free to contact us.