Syariah
In Malaysia, Islam is recognized as the religion of the Federation as provided in Article 3 of the Federal Constitution. This recognition guarantees Malaysian Muslims to practice Islam freely and also to resolve disputes using Syariah law based on the Al-Quran and Sunnah.
Each state in Malaysia has its own Syariah law and Syariah courts. Therefore, a person who wishes to take a case to a Syariah court to resolve a dispute must identify the court that has jurisdiction to hear such case.
MONCO offers Syariah advisory services to clients in determining which court has the jurisdiction to hear a client’s case. MONCO is experienced in Syarie legal services for property and family related cases including but not limited to hibah, inheritance, wills, marriage, divorce and issues arising after divorce.
Among the Syariah legal services offered by MONCO-
Mal cases related to Muslim property
MONCO provides advisory services related to the administration of Muslim property and provides instruments for managing the administration of a Muslim’s property during their lifetime or after death such as-
(a) Hibah
MONCO has vast experience in handling one of the instruments of Muslim estate administration, namely the verification and withdrawal of hibah in the Syariah High Court. Hibah is a gift that is made without any consideration. MONCO is also experienced in preparing hibah agreements in which the same is to be recorded as an order in the Syariah Court.
(b) Wills (Wasiat)
MONCO is also highly skilled in handling cases related to wills, especially Muslim wills (wasiat). Referring to Section 2 of the Muslim Wills (Selangor) Enactment 1999, a will means an iqrar of a person made during his life time with respect to his property or benefit thereof, to be carried out for the purposes of charity or for any other purpose permissible by the Islamic Law, after his death.
MONCO is also experienced in preparing will documents for clients.
(c) Inheritance (Faraid)
Faraid is defined as the distribution of a Muslim’s estate whether he left a will or not before his demise. Before being filed in the relevant court, the deceased’s heir must first settle all his debts, funeral costs, matrimonial property, wasiat (not exceeding 1/3 of the estate), if any. The remaining amount from the estate can then be divided by way of faraid to the eligible heirs.
A Faraid Certificate can be obtained from a Syariah Court, in which it provides information that determines who is entitled to inherit the estate of the deceased as well as the portion he/she is entitled to receive.
At MONCO, we are competent in handling such faraid cases in the Syariah Courts, where we assist clients to obtain a Faraid Certificate to ascertain the next eligible heirs, as well as to obtain a Letter of Administration from the Department of Director General of Lands & Mines (JKPTG) or the Civil High Court according to the value of the deceased’s estate.
Among the cases that have been handled by MONCO-
- Representing clients in hibah verification cases in the Syariah High Court.
- Representing clients to obtain faraid certificate in the Syariah High Court.
- Provide Hibah instruments such as Hibah Agreements and Trust Deeds.
- Provide advisory services related to wills as well as prepare will instruments.
Mal cases related to Muslim family
MONCO is committed in providing Syarie advisory and legal services in cases relating to-
(a) Marriage
(i) Registration of foreign marriage
MONCO is adept in assisting clients in applications for registration of marriages in foreign countries, at national borders or other places. For such cases, before the registration to obtain a marriage certificate at the Religious Department is made, the client must make an application for the registration of such marriage at the Syariah Subordinate Court.
(ii) Polygamy
Our team also possesses expertise in handling polygamy cases involving the application for Order to Register Polygamous Marriage from the Syariah Court.
In such applications, if the Court is satisfied that the man has the ability to support his wife or wives, and is able to be just to his wife or wives and that the new marriage will not cause darar syari’e to the existing wife or wives, then the Court may allow the application. This is to ensure the rights and interests of the existing wife or wives are well protected.
(b) Divorce
(i) Divorce By Mutual Consent
MONCO is well versed in providing Syarie advisory services and representing clients to file for divorce by mutual consent.
We are also highly accomplished in preparing settlement agreements for the parties to be recorded into an order in the Syariah Court.
(ii) Pronouncement of talaq outside the Court
A man who has divorced his wife by the pronouncement of talaq outside the Court and without the permission of the Court shall report the pronouncement of talaq to the Court within seven days. The Court shall then hold an inquiry to ascertain the validity of such pronouncement of talaq as according to Syara’. The team at MONCO have extensive experience in handling the registration of divorces outside the Court.
(iii) Fasakh
MONCO is also actively committed in handling complex fasakh cases especially cases involving neglect or cruelty. Referring to the Islamic Family Law (State of Selangor) Enactment 2003 as an example, fasakh is defined as the annulment of a marriage by reason of circumstances provided under Section 53 of said Enactment.
(iv) Ta’liq
According to Section 50 of the Islamic Family Law (State of Selangor) Enactment 2003, ta’liq is a promise expressed by the husband after solemnization of marriage in accordance with Syara’ and the provision of the Enactment. Failure of the husband to comply with such promise then the same shall be considered as a breach of that ta’liq agreement in which an application for divorce may be applied to the Syariah court.
MONCO is skillful in providing Syarie advisory services as well as represent clients to apply for a divorce upon breach of any conditions as provided in the ta’liq agreement.
(v) Khuluk/ Divorce by Redemption
Divorce by redemption or khuluk divorce means a request to dissolve a marriage made by a wife to her husband either by paying an amount of money or returning a property likewise agreed by both parties at the time when they contracted ijab and qabul.
MONCO is distinctly capable in providing Syarie advisory services and representing clients in these khuluk divorce claims.
(c) Post-Divorce Claims
(i) Arrears of Maintenance
Among the rights that can be claimed by a wife in the Syariah Court after the dissolution of marriage is the arrears of maintenance, which is maintenance that is not paid by the husband to his wife during the period of marriage. Arrears of maintenance is basically a debt that must be paid by the husband to the wife.
To illustrate, MONCO is proficient in advising and representing a wife to make an application under Section 70 of the Islamic Family Law (State of Selangor) Enactment 2003, in order to obtain arrears of maintenance that can be recovered by the wife from her husband.
MONCO also assists clients in negotiating and discussing with the spouse to record the agreement in Court regarding the amount agreed to be paid.
(ii) Iddah Maintenance
Iddah maintenance is maintenance that is to be paid by the husband to his ex-wife during iddah raj’ie. We are experienced in providing Syarie services and litigation for iddah maintenance claims in Syariah Courts. We also offer services to consult and negotiate with ex-spouses in order to record the agreement between the parties in the Syariah Court.
(iii) Right to Accommodation During Iddah
MONCO is also masterly in assisting clients regarding the right to accommodation during iddah. For example, Section 72 of the Islamic Family Law (State of Selangor) Enactment 2003 provides that a divorced woman is entitled to stay in the home where she used to live in when she was married, for so long as her husband is not able to get other suitable accommodation for her. As for that, MONCO is equipped in helping clients obtain Court orders for such cases. We are also also skilled in negotiating and preparing consent agreements for accommodation rights agreed upon by clients and ex-spouses and the same to be recorded into an order in the Syariah Court.
(iv) Mut’ah/consolatory gift
Besides the right to apply for maintenance, a woman who has been divorced without just cause by her husband may apply to the Court for Mut’ah or a consolatory gift. Mut’ah is meant to ease the burden that has to be shouldered by the wife after divorce. The amount and rate of mut’ah shall be reasonable and appropriate, in accordance with the Syara’.
MONCO represents clients in handling cases for mut’ah applications from ex-wives that have been divorced by talaq. We are also adept in negotiating and preparing agreements for the amount of mut’ah agreed by the client and ex-spouse for the same to be recorded into an order in the Syariah Court.
(v) Matrimonial property
We are also tremendously committed in handling complex matrimonial property cases especially matrimonial property cases for deceased spouses.
MONCO provides advisory services to clients for marital property cases as well as represent clients to negotiate in reaching a consensus for their respective portion of such property for the same to be recorded in the Syariah High Court.
(d) Children’s Rights
(i) Interim Hadhanah
MONCO is accomplished in handling cases of interim order as to hadhanah or also known as temporary child custody, before a full hadhanah is decided in the Syariah High Court. The Court may make such order if it is satisfied on any party’s application for the hadhanah of a child.
(ii) Hadhanah
Hadhanah refers to the custody of a child, after the divorce of the parents, as referenced in Section 82 of the Islamic Family Law (State of Selangor) Enactment 2003. This provision also mentions that the mother shall be the person best entitled to the custody of her infant children, but in circumstances where the Court finds her to be disqualified under Syara’, the right to hadhanah shall pass to the persons in the order provided under Section 82 of the Enactment.
MONCO is prepared to represent clients to make hadhanah claims in the Syariah High Court. We also provide advisory services to clients to negotiate and also represent clients in Court to act as well as prepare agreements to be recorded as orders in the Syariah Court.
(iii) Maintenance of Children
We are also active and committed in handling cases on the maintenance of children. Examples of child maintenance that can be claimed in the Syariah Court includes accommodation, clothing, food, medical attention and education. It shall be the duty of a man to maintain his children, whether they are in his or another person’s custody, by providing the aforementioned needs reasonably, having regard to his means and station in life or by paying the cost thereof.
MONCO caters clients in negotiating and resolving such cases and also represent these clients in the Syariah Court.
Among the cases that have been handled by MONCO-
- Representing clients in claims of matrimonial property from the deceased husband’s estate.
- Representing clients in divorce proceedings and preparing settlement agreements in applications for divorce by mutual consent.
- Representing clients who are foreign nationals making claims for interim order as to hadhanah.
- Representing clients filing post-divorce claims which includes arrears of maintenance, iddah maintenance, right to accommodation during iddah, mut’ah/consolatory gift and matrimonial property.
- Representing clients in hadhanah and child maintenance claims after divorce.
(e) Application to Renounce Islam (Apostasy)
Renouncing Islam or apostasy is when a Muslim has declared himself to leave Islam and such situation must be proved before a Judge. MONCO readily provides advisory services in cases for such applications to renounce the Religion of Islam, or apostasy, in the Syariah High Court as according to Section 61 of the Administration of the Religion of Islam (State Of Selangor) Enactment 2003.
Note: List II, Ninth Schedule of the Federal Constitution provides that Islamic Law is a matter falling within the State List, in which each state in Malaysia has its own Syariah court system that deals with matters regarding Islamic Law and is applicable to persons who professes the religion of Islam. Thus, matters regarding Syariah Law is to be dealt with as according to each state’s Syariah laws and courts.