1 Lab2023 Setting the Mind

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LAB2023 COURSE INTRO Who is affected by Islamic Family Law? How does IFL different than the other family law? What is Islamic Family law? Are you aware of any Islamic family law issue?

Transcript of 1 Lab2023 Setting the Mind

LAB2023 COURSE INTROWho is affected by Islamic Family Law? How does IFL different than the other family law?

What is Islamic Family law?

Are you aware of any Islamic family law issue?

LAB2023 COURSE INTRODo you know any syarie lawyer? Have you ever visit the syariah court?

Are you interested in becoming a syarie lawyer?

Example of landmark cases?

SETTING THE GOAL ....Why do you study? Why do you choose SMFF?

Why does the world continue to need good syariah scholars?

What is your long term target?

What is your short term target?

Do you have what it takes to be employable?

Do you have what it takes to become an entepreneur and create jobs for yourself?

....SETTING THE GOALAre you aware of your learning challenges? Is there any personal challenges?

Do you have hobbies that could enhance personal development?

Is money a problem?

Are you working part time?

Are you aware of your responsibility towards others?

Are you an EXCELLENT MUSLIM?

100% COMMITMENTBE ON TIME OPEN POSITION

READY TO MOBILISE

NO CHATTING LISTEN AND GIVE FEEDBACK WHERE NECESSARY NO MOBILE PHONE ACTIVITIES

INDIVIDUAL ACTION WILL AFFECT THE WHOLE TEAM

OBSERVE DRESS CODE AND HAVE GOOD DRESS SENSE

NO EATING/ CHEWING/ DRINKING

YOUR STUDY COMES FIRST

CLEANLINESS AND HYGIENE

BE PROACTIVE

NO EXCUSE

MAKE DUA, THE ESSENCE OF IBADAH PART OF OUR ROUTINE.

SUCCESS IS 10% HARDWORK AND 90% COMMITMENT.

LIFE IS 10% OF WHAT HAPPENS TO YOU AND 90% OF HOW YOU RESPOND TO IT.

THE COURSE OUTLINE PLEASE DOWNLOAD FROM GOALS

LEARNING OUTCOME:

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TRANSFERABLE SKILLS:Written and interperson al communica tion Adab and Akhlaq Team work

Problem solving

Leadership

Critical Thinking

DISTINCTIVE FEATURES OF SMFF AND USIM GRADUATE

SHAPE

SUBSTANCE

STYLE

CHAPTER 1: INTRODUCTION TO FAMILY LAW IN MALAYSA1. What is family? Basic unit of society Man+ woman+ children A group consisting of parents and children living together in a household. There have been many definitions and descriptions of the family. For our purpose, we shall adopt the following simplified definition. The family is a human social group whose members are bound together by the bond of blood ties and/or marital relationship.

TYPE OF FAMILYNuclear Extended Polygamous Commuter

Sandwich

Touch n Go

DINK

Blended Family At risk families

Married couple families

Cohabiting families

Lone parent families

SOCIAL ISSUES IN FAMILIESChildren Abuse Neglect Abandonment Harassment

Teenager/ Young adults Baby dumping Attitude problem Substance abuse Social media abuse Influence of foreign culture

Husband and Wife Relation Infidelity Divorce Communication

Parents Teenagers problems Finance Work- life balance Mental health

Elderly/ Warga Emas Loneliness Health Economy Empty nest Safety and security

FUNCTION OF THE LAW IN FAMILY RELATIONTo govern marriageTo govern breakdown of marriage To prevent divorce To prevent neglect

DUAL SYSTEM OF FAMILY LAWMuslimPersonal law

Non MuslimCivil law and customs

Civil courts Syariah courts

Native customary courts

APPLICATION OF FAMILY LAW TO MUSLIMS Only Islamic Family Law is applicable to Muslims Islamic Family law contain in the enactments 14 different enactment Only applicable in respective state

Art. 74- subject matter of federal and state laws Second List of the Ninth Schedule- Clause 1

1. Islamic law 2. Personal and family law of persons professing the religion of Islam, including the Islamic Law relating to succession, testate and intestate, bethrotal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partition and charitable trusts, Wakafs and the definition of charitable and religious trusts, the appointment of trustees..

APPLICATION OF FAMILY LAW TO NON-MUSLIMS

- The Islamic family law is not applicable to Non- Muslims -

Non- Muslims are subjected to the LRA - Syariah Courts have no jurisdiction over Non- Muslims

COURTS JURISDICTION OVER FAMILY MATTERS Prior to the amendment of the FC in 1988, both syariah and civil courts have jurisdiction over Islamic Family Law matters Therefore when a case is brought to the Syariah court, Islamic principles will be applied. But if the same case is brought to the Civil courts, the Islamic principles will not be observed.

Art 121: (1) There shall be two High Courts of co- ordinate

jurisdiction and status.. (1A) the courts referred to in clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of Syariah courts

Syariah Courts have no jurisdiction over NonMuslims Any claim made by non- Muslim against Muslims in family matters shall be brought to Civil Courts and it shall have jurisdiction to decide the matter even if it will affect the interest of the Muslims.

DOMICILE Different than resident Different than nationality

Though the term domicile and residence are commonly used in the LRA they are not defined.

Therefore the Civil Law Act 1956 becomes relevant Section 3 (1) of the Act provides that: Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia, the court shall(a) In West Malaysia or any part thereof, apply the common lay of England and the rules of equity as administered in England on the 7th day of April 1956. (b) Sabah (c) Sarawak Thus, rules pertaining to domicile and residence in Malaysia, the common law and equity still apply

Meaning of domicile (Sinha Deeraj, 1996: 63) :As a word describing a fact, the place in which a person is found to be residing.

As legal term, it involves the intention either of

permanently residing there, the animus manendi, or the absence of any present intention of permanently leaving it, even if as a fact the person who claims domicile is not physically present at any given time.

The civil status of a person, or his legal rights and duties, including capacity to marry are determined by the law of his domicile

THE IMPORTANCE OF RESIDENCE UNDER ISLAMIC FAMILY LAW STATUTES IN MALAYSIA To determine jurisdiction of the courts

Legal consequences Application of law over a person

DOMICILE OF ORIGIN - Everyone has a domicile of origin

- This is obtained at birth, following his father if legitimate and mother, if illegitimate - Carry it through the lifetime

- When a person acquire domicile of choice, his domicile of origin will be suspended - If then the domicile of choice is relinquished, the

domicile of origin will be revived

DOMICILE OF CHOICE Can be acquired by any adult E.g. in Malaysia when he reach 18 yrs of age Female may only have DOC if she is 18 and unmarried A person asserting change of domicile must prove it. It must be proved that the person has the intention to change his domicile The change must be made voluntarily and not due to compulsion, i.e. duties, medication and treatment, study

Changing residence is not sufficient to prove change of domicile

It must followed by the actual intention to to live in the place/ country on permanent basis Intention is not necessarily made oral but can be

derived from actions.

Udny v Udny (1869) LR 1 Sc & Div 441 Udny- originally from Scotland and bought a house there Had lived in England for 32 yrs.

Then he sold his house ( together with the furnishings) in England and moved to France The law applicable to him is

Winans & Anor v Attorney General (1904) AC 287 American citizen Reside in Russia for some time Owned various houses in England

Had sporting leases in Scotland Married to a woman in Petersburg, Russia. Had Property in USA and went to England as

recommended by his doctor. Lived a long time in England.

Invented a cigar- shaped boat and has the desire to go back

to USA when his boat succeeded He died in England. What is his domicile during the death? The Crown of England claimed that Winans had changed his domicile to England and wanted to claim legacy duty. Therefore, the Crown must prove that there is an intention to change his domicile

Lord Mcnaghten:

Such an intention, I think shall not be inferred from an attitude of indifference or disinclination to move increasing with increasing years, least of all from the absence of any manisfestation of intention one way or the other. It must be a fixed and settled purpose. And unless you are able to show that with perfect clearness and satisfaction to yourselves, it follows that a domicile of origin continues

Shaik Abdul Latif v Shaik Elias Bux (1915) 1 FMSLR 204 The deceased DOs is in Hong Kong Moved to Singapore and then to Kuala Lumpur Lived in KL for 19 yrs until death

Amassing wealth while in Selangor, built home for his family and regarded Selangor as his residence. No house or property in Hong Kong or elsewhere Never returned to Homg Kong.

Two Chinese wives- converted to Islam, never go back to

China What is his domicile when he died? Which law shall determine the validity of his will, Islamic Law in Selangor or Hong Kong?

DOMICILE OF DEPENDENCE Domicile of Dependence of a child Domicile of Dependence of a wife A child attains DOD upon birth The presumption is that a child is unable or incapable of having an intention that is needed to determine domicile. A woman takes her husbands domicile upon marriage. It will cease by decree of divorce

Ang Geck Choo v Wong Tiew Yong (1997) 3 MLJ 467 Petitioner (wife) originally domiciled in Singapore Lawfully married to respondent in Malacca She filed for divorce

Respondent filed a prelim. Objection saying that her

domicile is Singapore and that the courts in Malaysia had no jurisdiction to entertain the petition for divorce

According to law applicable in Malaysia, upon marriage her

DO will And she shall take .. Thus, her domicile is .. She retains the DOD until the marriage is dissolved

MATRIMONIAL DOMICILE Radwan v Radwan

Whether a second wifes marriage to the husband (which is polygamous) lawful according to English Law? -In English Law the validity of a marriage was to be determined by the law of the country in which the parties intended to make their matrimonial home. Therefore, the wife has the capacity to enter into polygamous marriage according to the law in Egypt.

Domicile and Muslims Domicile should also be considered in the context of countries that have component states. Domicile determine the application of an Islamic Law enactment over a person Section 4 of the IFLA 1984 provides that: Save as otherwise expressly provided, this Act shall apply to all Muslims living in the Federal Territory and to all Muslims resident in the Federal Territory who are living outside the Federal Territory.

Martin v Umi Kelsom (1963) MLJ 1 Petitioner- Christian and domiciled in England Respondent- Muslim domiciled in Selangor Went through a ceremony of marriage in accordance with the Christian Marriage Enactment Separated about ten years Then the husband applied to the court to declare his marriage as null and void because the respondent

was a Muslim and by reason of her personal law was incapable to marry him

The laws governing divorce at that time was Divorce

Ordinance 1952 in which section 3 stipulated that in all proceedings made under the Act, the court should act on the principles on which the English Courts could Act. The marriage was contracted appropriate to the husbands domicile where he can marry Muslim and therefore the marriage was valid.

Re Maria Huberdina Hertogh (1951) MLJ 164 Born in 1937 Came into custody of Aminah in 1942 and raised as Muslim Her father was a POW under Japanese army August 1950 a marriage ceremony under Islamic law took place between Maria Hertogh and Mansor Adabi Then the Respondent (parents) of Maria commenced proceedings applying for a declaration that the marriage was invalid.

A marriage is valid only when each of the parties has ,

according to the law of her respective domicile, the capacity to marry the other, and that certain conditions as to the form of celebration stated therein had been complied with. By the law in Holland the infant was incapacitated from contracting a marriage

Residence A man can have two residence Temporary presence at an address does not make a man

resident there. Temporary absence does not deprive a person of his residence.