Syariah Marriage & Divorce dan Faraid

Muslim family affairs in Malaysia, such as marriage, divorce, and property division (faraid), are regulated by the Islamic Religious Affairs Department of each state and have various legal provisions depending on the state. The Islamic Family Law (State of Penang) Enactment 2004 is applicable to the state of Penang.

Marriage

Muslim marriages in Penang are under the jurisdiction of the Islamic Religious Affairs Department of Penang (JHEAIPP). In order to ensure that marriages are carried out in accordance with Islamic law, JHEAIPP has set conditions that must be followed by every individual who wants to get married.
 
Marriage Goals

The goal of marriage is to achieve the happiness of a lasting family life and gain the pleasure of Allah SWT.

General Conditions of Marriage
  • The minimum age for male applicants is 18, while the minimum age for female applicants is 16. Applicants who are younger than the minimum age must obtain a Reference Letter from the District Religious Office to seek approval from the Syariah Court.
  • For Malaysian citizens, the application form may be completed 90 days before at the earliest or at the latest 14 days before the date of the marriage contract (akad nikah) or, and for foreign citizens, at the earliest 21 days before the date of the marriage contract.
  • Applicants (male or female) who have an address in Penang or who have resided permanently in Penang for more than 4 months are eligible to apply for a Marriage Permit, through the e-munakahat application.
  • Online applications will only be processed once the applicant complies with the necessary process requirements such as the marriage permit application checklist (depending on the circumstances).
Pre-Marriage Procedures
  1. There are no barriers to marriage: The couple’s relationship does not fall into the category of prohibited relationships for marriage, and guardian (wali) approval is obtained.
  2. Attend a pre-marriage course: Couples must complete an Islamic Pre-Marriage Course offered by the State Islamic Religious Department and receive a certificate in order to apply for marriage.
  3. Undergo a health check: Every couple who wants to get married must undergo a health examination (HIV screening test).
  4. Marriage permit application: Couples must complete the marriage permit application form provided by the State Islamic Religious Department.
  5. Two representatives from the applicant’s community mosque must certify the marriage application form, and the applicant’s status must be verified by an official stamp.
  6. The application form and related documents must be signed and stamped by the Assistant Registrar of Marriages in the applicants’ respective areas.
  7. The signed and stamped application form along with payment of RM5.00 must be submitted to the District Religious Office to register the marriage permit. The application form may be submitted 90 days before the marriage contract date at the earliest or, at the latest, 7 days beforehand.
  8. Applicants will receive a marriage permit from the District Religious Office after 7 working days and must submit the permit to the Assistant Registrar of their respective areas.
  9. The marriage ceremony will be conducted on the date and at the place agreed upon by the applicant.
Marriage Procedures
  1. After the marriage contract ceremony (akad nikah), the groom will be asked to read the ta’liq agreement and sign the Marriage Certificate, as well as pay RM20.00 for two witnesses and RM130.00 to the Assistant Registrar.
  2. The groom will then be informed of the requirements for obtaining a Letter of Marriage (surat nikah), and he will be required to register the marriage with the relevant District Religious Office within 14 days of the marriage contract ceremony.
  3. Applicants will receive a Marriage Certificate from the District Religious Office 7 working days after registering their marriage.
Ta’liq Agreement

Ta’liq is the agreement read out and pronounced by a husband after the marriage contract ceremony (akad nikah) has taken place. This pronouncement means that the husband acknowledges the connection between talaq (divorce) and the violation of the ta’liq conditions pronounced. Any ta’liq condition that the husband violates can result in talaq.

The conditions of the ta’liq agreement may be added onto during marriage, even one of long duration. However, these additional conditions need to be discussed and agreed upon by both parties first.

Each state has its own ta’liq agreement, which is legally binding. After the husband pronounces the ta’liq agreement, it is recorded in the Marriage Certificate and signed by the couple.

The three conditions of the existing ta’liq agreement stated on the marriage certificate are:

  • The husband promises not to leave his wife for 4 consecutive months;
  • The husband promises to provide maintenance;
  • The husband promises not to harm or mistreat his wife.

If a husband violates any of the conditions of the ta’liq agreement that has been made, then the talaq will take place.

Implication of Ta’liq

  • Talaq does not occur and the couple remains as husband and wife as long as the action described in the ta’liq does not take place.
  • Talaq occurs when the action described in the ta’liq occurs.
  • Divorce related to violations of ta’liq (talaq ta’liq) must be referred to the syariah court with jurisdiction to confirm the divorce.
Overseas Marriages

Prosedur perkahwinan di luar negara di Kedutaan Malaysia, dan sebagainya

Marriage procedures abroad at the Malaysian Embassy, ​​etc.

Marriage contracts ceremonies (akad nikah) may be conducted by appointed Registrars at Malaysian Embassies, High Commissions or Consulates in other countries with the following conditions:

  1. One or both parties are Malaysian citizens;
  2. Each party is eligible to marry under the provisions of the Enactment of the Islamic Family Law; and
  3. Notice of the marriage has been given within the prescribed time period and published at the Registrar’s office at the Embassy, High Commission, or Consulate where the marriage will be solemnised, as well as at the District Registry Office in Malaysia in the district(s) where each party was last ordinarily resident, and no caveat (preventing registration) or notice of objection is received.

Overseas Marriage Registration and Procedures

  1. Malaysian citizens who marry abroad must register the marriage with the nearest Registrar abroad OR with any Registrar in Malaysia within 6 months of the date of the marriage contract ceremony (akad nikah).
  2. The person must:
    • submit the marriage certificate to the Registrar; and
    • complete the prescribed form, which includes the declaration.

The Registrar may excuse the attendance of one of the parties to the marriage if he is satisfied that there is a good and sufficient reason for that party’s absence.

Polygamy

In Islamic law, a man is not allowed to marry another woman while he is still married to his wife unless he gets written permission from the Syarie Judge, and he has to make an application to the Court.

The court will consider the following matters in approving the application:

  1. Applicant’s earning capacity;
  2. The applicant’s commitment and responsibility towards the new wife;
  3. Financial commitments and dependents of the applicant in his current family;
  4. The first wife’s permission or opinion.

After submitting the application to the Court, the applicant and his first wife must appear in Court and the Court will allow the application if the following conditions are met:

  1. That the applicant has the capacity to support and finance his current and new family;
  2. That the applicant can treat both his current and new family fairly and equally;
  3. That the proposed marriage will not cause harm or danger to his current wife; and
  4. That the marriage is just and necessary.

“And if you fear not being fair to the orphan women (when you marry them), then marry (with) other women whom you like, two, three, or four. Then if you are worried that it will not be fair (between your wives) then (marry) only one, or suffice with the female slaves you have. That is closer (to prevent) to prevent you from doing injustice.” –  Allah SWT says in An-Nisa'(4):3

The above verse clearly shows that polygamy is viewed as a responsibility and a restriction to ensure justice for orphans. Is polygamy now permitted more to meet men’s sexual needs than to protect orphans? The preceding verse clearly shows that the Quran does not encourage polygamy as an unrestricted right, but rather to ensure the protection of widows and orphans.

This is reinforced by a verse in An-Nisa’ 129, “And you will not be able to act justly between your wives even if you are serious (to do it)”. As the Qur’an clearly insists on justice for women and fair treatment of wives, it also admits that these conditions are impossible to meet. By emphasising the need for fair and equal treatment of all wives, verse 4:3 cannot be interpreted as encouraging polygamy.

Soalan Lazim (FAQs)

Engagement

Can I claim damages if the man cancels the engagement?
Yes. A claim for damages can be made under Section 15 of the Islamic Family Law (State of Penang) Enactment 2004, for the payment of engagement costs (for example, the caterer’s payment, the cost of purchasing a ring, etc.), but not for reasons of shame.

Marriage

Is it necessary to have guardians and witnesses at a wedding?
Yes. Guardians and witnesses are the most important individuals and are obligatory conditions in the marriage commandments that all Muslims who wish to marry must follow. Learn more about arrangements for guardians and witnesses here.

Is it necessary to register a marriage in Malaysia?
Yes. Every marriage, whether inside or outside Malaysia, must be registered with the respective district’s State Religious Office, or if outside the country, the Malaysian Embassy. It aims to make the process of claiming your rights as a wife and/or mother under Islamic law easier. If no registration is made after marriage, you may face difficulties if marital issues such as divorce arise.

Can the wife impose new ta’liq conditions after marriage?
Additional ta’liq conditions may be imposed at any time, whether during the marriage contract ceremony or after a long period of marriage. The wife can still request that her husband pronounce additional ta’liq, including prohibiting the husband from marrying someone else without her permission.

Is it possible for a husband to be a nusyuz?
Yes. Nusyuz (state of obedience) is applicable to both spouses in a marriage. When a husband fails to fulfil his responsibilities as a husband, he can also fall into nusyuz. This means that the husband refuses to fulfil his rights and his wife’s physical and spiritual needs, or that he is abusive towards her.

The wife’s spiritual rights and maintenance needs include good communication, fulfilling sexual needs satisfactorily, providing religious education, being fair, not being insulted and abused. While the wife’s physical or material rights include dowry, maintenance and mut’ah if there is a divorce but the wife does not commit nusyuz.

What types of marital misconduct can be reported to the Syariah Court?

You can make a complaint to the Syariah Court if your husband does the following:-
a) Harass you: According to the Islamic Family Law or the Domestic Violence Act, you can obtain a restraining order from the Court to stop the harassment.
b) Persecuting and being unfair to you;
c) Polygamy without Court permission;
d) Pronouncing divorce outside/without the permission of the Court; and
e) Leaving you after the Court issues an order to return to you but your husband refuses to do so

Polygamy

Is it a sin for a wife not to allow her husband to be polygamous?
No. According to Surah An-Nisa (4):3, “…if you fear that justice will not be done (between your wives), then (marry) only one.”

Therefore, wives who do not allow their husbands to be polygamous because they know that there is a high possibility that their husbands will not be fair or that the marriage will harm them or their children, are innocent.

Is it possible for the wife to claim matrimonial property before the husband becomes polygamous?
Yes. If the husband wishes to remarry, the existing wife has the right to claim matrimonial property before the husband remarries. Matrimonial property can be claimed at any time during the marriage or after divorce.

See useful resources on Syariah marriage.

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