Najibah Mohd Zin

The Applicability of the 1980 Hague Abduction Convention in Muslim Countries: Particular Reference to the Malaysian Position

In response to the increasing number of traumatic international child abduction cases, the Hague Abduction Convention (the Convention) has been adopted to secure the return of abducted children to their home country. Most Muslim countries are, however, not yet parties to the Convention. This article seeks to investigate the reason for this phenomenon, focusing in particular on the Convention’s compatibility with basic tenets of Islamic law. The article also evaluates Malaysian domestic legislation and case law in order to assess whether Malaysia is in a position to be a party to the Convention. The article finds that although there are a few areas of concern, no serious incompatibility between Shari’ah and the Convention exist, and that more dissemination is required to quash misconceptions about the Convention among Muslim countries. The article concludes with recommendations for Muslim countries in this crucial area of protecting the best interests of our children.

Impact of globalisation on domestic family law: multi-tiered marriage in Nigeria as a case study

ABSTRACT The concept of globalisation is commonly discussed as an issue in international law. However, little attention is paid to its influence in domestic family law. As a result of the growing trend of globalisation, legal and cultural norms of the host culture and the foreign culture are fused, thereby, leading to cultural homogenisation or cultural hybridisation, depending on the level of accommodation of the foreign norm by the host norm. One of the areas where hybridisation or homogenisation of cultural and legal norms manifests, especially in African countries including Nigeria, is in the marriage system, particularly in the conclusion of marriage contracts. In Nigeria, one of the impacts of cultural hybridisation is the evolvement of multi-tiered marriage, where a couple combines marriages under the statute law, customary law and religious law, especially Islamic law. This paper is an exploratory study of how globalisation impacts on how and why multi-tiered marriage is contracted in contemporary Nigeria. The paper also briefly discusses how the combination of marriages as a response to globalisation affects the operation of family law rules in Nigeria as well as the rights of the parties involved, especially the women.

Shariah Compliance in Fair Distribution of Matrimonial Asset

The divorced spouse often face obstacle in distribution of matrimonial asset especially in determining a fair portion of share of the asset. The problems in managing the dispute of dividing the asset caused delay and prolonged litigation process. Thus, to safeguard the interest of the parties in the marriage, Malaysian family law for Muslim regulates the right for the divorced wife to apply for division of matrimonial assets where it regulates criteria in division of the assets. Thus, the study is undertaken to investigate the effective law in dividing the assets through court practices. For that purpose, a case study was designed by using a qualitative method where analysis was conducted on a careful selected sampling of 215 unreported cases within the time frame of 2000–2012 collected from six zones representing Shariah Courts in Malaysia where analysis is made based on several variables such as mode of division, scope of matrimonial asset, elements of consideration, and proportion of share. Based on that sampling, it has been discovered that contribution remains as a sole criteria used by the court to ascertain the proportion of share to parties. Thus, this study suggests that the court should use more generalized considerations in determining the proportion when dealing with the division of matrimonial assets after divorce to prevent a costly and lengthy litigation process and to ensure fair distribution is conducted by the court. There is a need for a reform of provision to consider other factors too other than contribution as sole determinant in division.

Managing Disputes in the Division of Matrimonial Property Involving Polygamous Marriage in the Malaysian Shariah Courts

Polygamous marriage is often associated with unfairness and discrimination against women especially on the issue of financial and property rights when the parties fail to manage their relationship harmoniously. Malaysian family law for Muslim regulates, among others, the right for the existing wife to apply for a division of matrimonial assets during marriage which is normally claimable after divorce or death of a spouse. This provision aims to protect the interest of the existing wife and children. Thus, the study is undertaken to examine the effectiveness of the law in dividing the assets through court practices. For that purpose, the study used a qualitative method which adopts both library and fieldwork research. A convenient sampling of 33 unreported cases within the time frame of 2000–2012 collected from six zones representing the Syariah Courts in Malaysia was studied and analysed. The analysis is conducted based on several variables such as types of matrimonial property, factors for consideration and proportion of distribution of the assets. Based on that sampling, it has been discovered that the majority of cases involving claims of matrimonial property in a polygamous relationship are practically settled by way of sulh (amicable settlement). The parties are in fact more generous when dealing with the interest of children to the level that the husband is willing to transfer the whole interest in the asset to the existing wife which is rarely achieved in other litigation processes. Thus, this study suggests that the use of sulh as a mode of dividing the matrimonial asset is to be widely practised when dealing with the division of matrimonial assets to prevent a costly and lengthy litigation process. Thus, there is a need for a proper mechanism to uphold the process of sulh in dividing matrimonial assets such as to facilitate the process with proper checklists.

Knowledge and accessibility of Muslim women to the law on post-divorce financial support

The main objective of the study was to determine the Muslim women’s knowledge and accessibility to the law on post-divorce financial support particularly that which relates to ʿiddah maintenance, mutʿah, arrears of maintenance, and child maintenance. The data was collected using self-administered questionnaire. The sample was 201 divorced women recruited from the recorded cases for the period 2003-2005 in the Shariah Subordinate Courts of Hulu Langat and Gombak Timur, Selangor. The findings indicate that almost all respondents (99%) have high level of knowledge on the legal rights to post-divorce financial support. However, more than two-thirds of the respondents (70%) had low level of accessibility to the law when claiming for post-divorce financial support. The study suggests that although divorced women might have better access to legal information through reading and socialization, the problems regarding the attitude of the court’s officers and lawyers, the complexity of the court procedures, the uncooperative attitudes and the non-compliance of the ex-husbands to the court-ordered financial support did impede their accessibility to the law.