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Yes, divorce first before conversion

06/02/2015

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In the past, there had been several controversial matrimonial cases due to the conversion to Islam by a non-Muslim spouse in civil marriages.

To this Parti Gerakan National Deputy Youth Chief Andy Yong said “this is particularly so when one spouse (usually the husband) who has converted to Islam without the knowledge of the other. The situation made complicated when the children of the marriage are also being converted to Islam without the knowledge or consent of another parent. Other related controversial issues involved the validity of divorce, maintenance, alimony, burial ceremony and court’s jurisdiction (between civil and Syariah courts) in deciding the dispute”.

It is reported recently that Negeri Sembilan Islamic Religious Council  (MAINS) has proposed new regulations such as requiring a non-Muslim to obtain dissolution of marriage from his or her spouse before converting to Islam.

Andy supports the said proposal as this will resolves all previous legal complications when one spouse converted unilaterally. This is especially so in relation to section 51(1) of the Law Reform Act (Marriage and Divorce) 1976 that stipulates “when one party to a marriage has converted to Islam, the other party who has not so converted may petition for divorce” of which there is a lacunae here (which is often the case) when the converted spouse did not inform his or her spouse.

Other related law that is potentially solved too includes Article 12 (4) of the Federal Constitution where it states “…the religion of a person under the age of eighteen years shall be decided by his parent or guardian”.    “This particular provision has created legal controversy and dispute in the past as there were different thoughts on the interpretation of “parent” resulting injustice to the non-converting spouse. And if such proposal by MAINS is passed, the civil court may also decide issues involving support, care and custody of the children prior to the conversion ” added Andy.

Lastly Andy agrees that “it will be ideal if other states follow the same proposal by MAINS in order to avoid controversy and most importantly would ensure that Islam would not be ridiculed just because of a wrongdoing of a Muslim convert. This is also to protect the sanctity of Islam”.

在过往,曾因为婚姻中的非穆斯林配偶皈依伊斯兰教,而发生过几宗有争议性的婚姻诉讼案件。

民青团署理团长杨锦成指出,这情况尤其发生在当其中一方(通常是丈夫)没有通知配偶的情况下转教。同时,在没有知会配偶的情况下,就为孩童转教,这将使情况变得更加复杂。其他相关的争议性课题包括离婚的有效性、赡养费、抚养费、葬礼和法院管辖权(民事和回教法庭间)的有效性。

根据今日太阳报的报道,森美兰州伊斯兰宗教理事会建议新的规定,要求非穆斯林在转教前,与其配偶离婚。

杨锦成对此建议表示赞赏,因为这将解决以往夫妻单一方面转教时所面对的法律纠纷,这尤其是和1976年法律改革(婚姻及离婚)第51(1)条文中的“当一方在婚姻中转教,那没有转教的另一方可以申请离婚”有关,但这有个缺点(经常发生的情况),转教后的一方并没有通知其配偶。

“另一项获得解决的相关法律包括联邦宪法第12(4)条文,其阐明18岁以下孩童的宗教应由其父母或监护人所决定。这特殊的规定在过去也造成法律的争议和纠纷,因为“父母”定义的不同诠释,这对于非转教配偶是不公平的。若森美兰州伊斯兰宗教理事会的建议通过,民事法庭也可以决定涉及孩童在转教前的支持、照顾和抚养问题。“杨锦成说

最后,杨锦成赞同若其他州属遵循森美兰州宗教理事会的建议是最为理想的,以避免发生争议,更重要的是将确保伊斯兰教不会因为错误的转教问题,而被嘲讽。同时,这也维护伊斯兰教的尊严。

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