THE one good thing about the recent amendment to the Law Reform (Marriage and Divorce) Act is that it allows couples where a spouse has converted to Islam the option of filing for divorce in the civil court, Amanah legal bureau chief Hanipa Maidin said.

The former PAS leader agreed that the amendment, which was approved by the Dewan Rakyat minus the crucial clause 88A that would more clearly define the child’s religion when one parent converts, does not solve the problem of unilateral conversions entirely, 

But the amendment to Section 51 of the Act at least allows a Muslim spouse to file for divorce in the civil court, where previously the converting spouse could only file for divorce in the shariah courts, he said.

Prior to the amendment, because shariah court rulings are non-binding to non-Muslims, the other spouse remains technically married.

“To solve this, the government is trying to amend Section 5 with the proposal to allow the Muslim spouse to also file for divorce in the civil courts. This will allow the civil court to also decide on the divorce and other matters like child custody and alimony. In legal terms this is called ‘ancillary reliefs’. 

“To me, honestly, this is a good amendment because couples have the option of going to the civil courts,” Hanipa, a lawyer, said in a statement.

However, the amendment does not stop Muslim converts from taking their divorce petition to the shariah courts.

“The amendment does not give civil courts the exclusive right to hear divorce petitions over the conversion of one spouse to Islam,” the Sepang MP said.

Section 51, before it was amended, had made divorce and custody a  bitter trial for the non-Muslim spouse as the Muslim spouse could go to the shariah court to unilaterally seek custody of the children, or an order to declare them Muslims.

“It is unfair to the non-Muslim spouse, as it is done ex-parte, and he or she is not given the right to be heard. It is worse still if the Muslim spouse runs off with the kids without the other parent’s knowledge. 

“We should be able to understand the sadness and anger of the non-Muslim parent. But some Muslims seem not to care about this,” he said.

The situation could also be complicated, Hanipa said, when couples took their cases to separate courts and each was awarded child custody. 

“There will be two court orders. This is the problem before the amendment,” he said.

Hanipa’s statement follows that of PAS central committee member Dr Riduan Mohd Nor who said the passing of the Law Reform (Marriage and Divorce) Amendment Bill 2017 was a “huge defeat for Muslim interests and a moral victory for Islam haters in the country”. He also faulted Muslim opposition MPs for not speaking up against the bill at the Dewan Rakyat.

Hanipa said Muslim MPs could either choose to argue emotionally and play to the gallery, or discuss it objectively and calmly to find a practical solution to the problem. 

“The first option is very easy, not needing in-depth thought and understanding of the real issue, or providing a solution. In most situations, those who pick the first populist option will play up emotions and sentiments. Muslims who do not understand the real nature of the problem would likely not criticise them.

“The second option is riskier and unpopular, but more practical and realistic. It projects justice, compassion and mercy, which are the core values of Islam.” – August 11, 2017.