Legal system based on English common law, with both Islamic law and �adat constituting significant sources of law, particularly in matters of personal status.
Parts of present-day Malaysia under Portuguese and Dutch control, and starting from Penang in late 18th century, region eventually came under British rule, formalised by Anglo-Dutch Treaty 1824.
First legislation regulating Islamic marriage in Straits Settlements was Mohammedan Marriage Ordinance 1880, mainly procedural in content. Continued to be applied in Penang and Malacca until State Acts passed in 1959. In Federated Malay States, first legislation passed was Registration of Muhammedan Marriages and Divorces Orders in Perak and Selangor in 1885.
Legislative assembly established in 1955; independence achieved in 1957. From 1948, States granted jurisdiction over application and legislation of shari�ah and from 1952 to 1978, new laws promulgated in 11 Muslim-majority States of Malaysia and Sabah; generally entitled Administration of Islamic/Muslim Law Enactments and cover official determination of Islamic law, explanation of substantive law, and jurisdiction of syariah courts. New laws relating to personal law enacted in most States between 1983 and 1987.
Kelantan Syariah Criminal Code Enactment 1993 relating to application of hadd penalties passed by State legislature but not brought into force.
School(s) of Fiqh
Shafi�i majority and Hanafi minorities; also significant Buddhist, Hindu and Christian minorities and high proportion of followers of indigenous religions, particularly in Sabah and Sarawak (both States are Muslim-minority).
Constitutional Status of Islam(ic Law)
Constitution adopted 31st August 1957; amended several times.
Art. 3(1) declares Islam official state religion and guarantees religious freedom. Arts. 3(3) & (5) Rulers of States declared heads of religion of Islam by State Constitutions; in absence of Muslim rulers (States of Malacca, Penang, Sabah and Sarawak) or in Federal Territories (Kuala Lumpur and Labuan) Yang di-Pertuan Agong (Head of State) is declared head of religion of Islam.
Ninth Schedule outlines legislative lists. Civil law (and family law as subset of civil law) come under federal legislature�s jurisdiction; however, persons of Malay race are defined as Muslims under Constitution and States empowered to make personal laws governing Muslims and laws relating to religious offences, and establish and regulate syariah courts for application of Islamic law. Family law relating to non-Muslims is in federal jurisdiction. Each State has Majlis (Council of Religion and Malay Custom) issuing fatawa generally in keeping with Shafi�i tenets except where such may conflict with public interest. Councils, with approval of State authorities, may follow minority Shafi�i views or interpretations from other three major Sunni madhahib.
3 levels of syariah courts: Syariah Subordinate Courts, Syariah High Court and Syariah Appeal Court. Jurisdictions of different levels of courts defined in State legislation.
In September 2000, the government announced that it would establish a separate family court
Islamic Family Law Enactments:
Kelantan, Negeri Sembilan, Malacca 1983
Selangor, Kedah, Perak, Federal Territories 1984
Penang, Pahang, Trengganu, 1985
[major amendments to IFL Federal Territories Act in 1994 included: allowing registration of polygamous marriage valid according to shari�a but not contracted with prior judicial permission, with courts empowered to consider character of husband as well as the considerations provided in original 1985 legislation, and deleted requirement that a proposed polygamous marriage must not lower standard of living of existing wife/wives and dependants in any way; also added that courts are to adjudicate on shar�i validity of extra-judicial talaq, although penalties for such are retained in the legislation]
Administration of Islamic Law Enactments:
Federal Territories 1993
Kelantan Syariah Criminal Code Enactment 1993
Marriage Age: minimum marriage age of 18 for males and 16 for females, with provision for judicial permission for underage marriage
Marriage Guardianship: valid marriage requires both parties� consent as well as consent of wali or syariah judge if no wali is available; compulsion of wards or unreasonable objection to their valid marriage punishable by fine and/or imprisonment
Marriage Registration: required; both parties must apply to Registrar for permission to marry at least 7 days before wedding; marriage not to be solemnised except in kariah masjid of woman�s normal residence or special permission to marry elsewhere; Registrar records value of contents and value of items of dower given and promised at solemnisation; provision for appointment of Registrars in public offices and kariah masjid; non-registration punishable by fine and/or imprisonment although it does not determine validity of marriage
Polygamy: allowed with judicial permission; contingent upon application and court hearing with existing wife or wives; court requires proof of necessity (e.g., sterility physical infirmity, wilful avoidance of restitution order, etc.), proof of financial capacity; guarantee of equitable treatment of co-wives; proof that proposed marriage will not lower standard of life of existing wife or wives and dependants; contravention of application and permission requirements punishable by requiring immediate payment of outstanding dower to existing wife or wives and by fine and/or imprisonment
Obedience/Maintenance: wife�s right to maintenance subject to classical definitions of obedience; wife�s disobedience can result in restitution order or punishment of fine; wife may obtain maintenance order from court (levels and time periods are not specified)
Talaq: extra-judicial repudiation punishable by fine and/or imprisonment, and courts adjudicate on validity of talaq on basis of classical Islamic law although original legislation is silent on the matter; husband wishing to pronounce talaq required to apply for judicial permission, outlining his reasons as well as amounts of payments of nafkah edah (�idda period maintenance), mutaah (consolatory gift) and maskahwin (dower) he intends to make and provisions for division of harta sepencarian (matrimonial property); if court hearing determines consent of other party and irretrievability of breakdown, court advises husband�s pronouncement of single talaq and registers divorce; if other party disagrees or court is not convinced of irretrievable breakdown, court begins conciliation efforts of no longer than six months; if conciliation committee fails to effect conciliation, issues certificate of its failure and any and recommendations regarding custody, maintenance, division of property, etc.
Judicial Divorce: wife may apply for dissolution on following grounds: husband�s disappearance for over one year; failure to maintain for three months; sentencing to three years or more in prison; failure to perform marital obligations for one year; continued impotence, if wife was unaware of it upon marriage; mental illness lasting two years or leprosy, vitalgo or communicable venereal disease; wife�s repudiation of marriage concluded by father or grandfather before she attained 16, if she is below 18 years and marriage was unconsummated; cruel treatment; husband�s refusal to consummate for four months; invalidity of her consent (obtained under duress, mistaken, etc.); and any other grounds for dissolution or nullification recognised in hukm shar�
Post-Divorce Maintenance/Financial Arrangements: wife divorced without just cause may apply for maintenance during �idda and mut�a, levels of which are to be set by court; court also divides assets acquired by joint effort during marriage, and may also order division of assets acquired by sole efforts, with consideration of contribution made by other party in terms of housework and caring for family, though other party will in all cases receive smaller portion; divorced wife entitled to reside in marital home during �idda or until expiry of custody or remarriage, if former husband cannot provide other suitable accommodation
Child Custody and Guardianship: divorced mother entitled to custody of boys until 7 years and girls 9 years, subject to classical conditions; court may extend custody to 9 and 11 years respectively upon hadinah�s application; after expiry of hadinah�s custody, father becomes custodian, with proviso that ward having reached age of discernment may choose with which parent to live, unless court directs otherwise
Succession: governed by classical law as modified by Malay custom
Law/Case Reporting System
Case reporting of Federal Court and High Court decisions in Malayan Law Journal. Law reporting is through Federal and State Official Gazettes. Some Syariah Court judgements included in Syariah Law Journal of International Islamic University of Malaysia.
International Conventions (with Relevant Reservations)
CEDAW � accession 1995, with reservation to Art. 11 (reservations to Arts. 2(f), 5(a), 7(b), 9 & 16 withdrawn in 1998)
CRC � accession 1995 with reservation to Arts. 1, 2, 7, 13, 14, 15, 22, 28, 37, 40(3) & (4), 44 and 45, declaring that "said provisions shall be applicable only if they are in conformity with the Constitution, national laws and national policies of the Government of Malaysia."
�Malaysia� in Statutes of Personal Law in Islamic Countries, 2nd ed. New Delhi, 1995; Redden,