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(2014) 15 SAL Ann Rev Muslim Law

22. MUSLIM LAW

MOHAMED FAIZAL Mohamed Abdul Kadir

LLB (Hons) (NationalUniversity of Singapore), LLM (Harvard);
Attorney and Counsellor-at-Law(New York);
General Counsel & Director(Legal), SingaporeMedical Council;
Member of the MUIS Appeal Board.

22.1 Muslims in Singapore are governed by a melange of laws

emanating from both religious and secular sources. The interplay
between the two makes for interesting reading and is not always well
understood: while, by and large, Muslims in the domestic context are
governed by secular-oriented laws that govern society as a whole, for
matters pertaining to personal laws, Muslims are governed by the
strictures of religious laws under the auspices of the Administration of
Muslim Law Act (Cap 3, 2009 Rev Ed) ("the Act"). Although these laws
cover a wide spectrum of matters, on a day-to-day level, their effects are
particularly pronounced in matters surrounding marriage and divorce,
and in relation to matters involving the administration of estates. The
relevant provisions of the Act that set out the legislative framework for
these areas are applied and administered by the Syariah Court and, to a
lesser extent, the Registry of Muslim Marriages. Parties dissatisfied with
the outcome of matters from these fora are in a large majority of
instances empowered, pursuant to s 55 of the Act, to appeal (or, in some
circumstances, to apply for leave to appeal) the decision to the apex
appellate body in Islamic law in Singapore, the Appeal Board of the
Majlis Ugama Islam Singapore ("the Appeal Board"). The four grounds
of decision issued in 2014 are emblematic of the diversity of questions
and issues the Appeal Board has had to, generally speaking, grapple with
and deliberate on in recent times, from matters surrounding the
capacity of parties to enter into a marriage, to those surrounding the
division of matrimonial assets post-divorce (including the
circumstances under which consent orders properly procured before the
Syariah Court ought to be varied), to the manner in which a court ought
to penalise perceived misconduct by one party in the execution of court
orders. Each of these judgments will be discussed seriatim.

Solemnisation of marriage

22.2 Given that most Muslims' first experience engaging with the
complexities of Muslim law would be during the registration of their
own marriage, it would be apposite to commence the discussion in this
chapter with a case that the Appeal Board dealt with in 2014 relating to
some of the unique intricacies of that process. In Jamie Johan Hashim v
Siti Rohani binte Jalani (Appeal Case No 39 of 2013) ("Jamie Johan
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 SAL Annual Review (2014) 15 SAL Ann Rev

Hashim"), the Appeal Board was made to grapple with the issue of the
ramifications of intentionally engaging in an informal "marriage
ceremony" that was conducted in contravention of the requirements
stipulated in the Act and whether the fact of such a "marriage
ceremony" militated any subsequent attempt to register a legally binding
marriage involving the same individuals under the Act.

22.3 The facts in Jamie Johan Hashim can be briefly stated. The
parties had applied, on 22 May 2013, to register the marriage to each
other at the Registry of Muslim Marriages and had indicated in the
application that they were both divorced from their previous spouses
(and, by extension, possessed the requisite capacity to get married to
each other). During a pre-marriage interview at the Registry of Muslim
Marriages before a Kadi (who serves as a solemniser of marriages duly
appointed under the Act), however, it transpired that the parties had
partaken in an informal "marriage ceremony" on 15 January 2012
(a ceremony that did not conform to legal requirements and therefore
appeared prima facie void as a matter of law), a "marriage ceremony"
that the parties themselves appeared to fully appreciate would be of no
legal effect at the time.

22.4 The Kadi refused to allow the registration of the marriage (as set
out in the application dated 22 May 2013) to proceed. In his grounds of
decision explaining such a decision, the Kadi noted that while he was
sceptical that the requirements for a legally valid marriage under Islamic
law were met in the "marriage ceremony" that had transpired on
15 January 2012, the question of the objective status of the "marriage
ceremony" was irrelevant as the parties were, in their own minds,
already married to each other as a result. Consequently, the Kadi noted,
it would not be appropriate to proceed with registration as to do so
would be, in effect, to allow them to be solemnised again (with the
parties having already been "solemnised" once already on 15 January
2012, whatever the legal status of such an act might be). The parties
appealed the Kadi's refusal to allow registration.

22.5 On appeal, the Appeal Board vacated the decision of the Kadi
disallowing the application for a solemnisation date. In doing so, the
Appeal Board explicated upon the powers of the Kadi in dealing with
such applications for solemnisation. The Appeal Board noted that
pursuant to s 95(2) of the Act, the Kadi was empowered to:
...make full inquiry in order to satisfy himself that there is no lawful
obstacle according to the Muslim law or this Act to the marriage and
shall not perform the ceremony until he is so satisfied.

Applying that provision to the facts of the case, the Appeal Board was of
the view that it would have been incumbent upon the Kadi, in

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(2014) 15 SAL Ann Rev Muslim Law

considering whether to grant the application, to consider, through the

exercise of such powers, whether there had been any legal impediments
to the solemnisation of the marriage and, in particular, whether the
"marriage ceremony" that had taken place on 15 January 2012
amounted to a valid marriage in law such that it would bar the
attempted registration of a second (lawful) marriage inter partes. If the
"ceremony" did not amount to a valid marriage as a matter of law
(as was suggested by the Kadi, and as the parties themselves appeared to
accept), then whatever one might have made of the sensibility of the
parties in partaking in such a "marriage ceremony", the application
could not be denied on the ground of the factual existence of such a
ceremony alone since this would not per se amount to a legal
impediment to a lawful Muslim marriage: at [20], [21] and [23].

22.6 The Appeal Board, however, was disinclined to make any

determinative finding on whether the "marriage ceremony" that the
parties had entered into on 15 January 2012 was legally valid. It
expressed concerns that the facts that had been presented to the Registry
of Muslim Marriages and on appeal, to the Appeal Board, were yet to be
independently considered, assessed and investigated and that the Appeal
Board was, in arriving at its decision on the proper scope of the Kadi's
duties and obligations under the Act, assuming the veracity of the
rendition of events provided by both parties. This, it noted, was not
determinative as there had been no substantive inquiries made at the
time the application was lodged, and rejected, of the veracity of the
factual account provided by the parties: at [24] and [27]. The Appeal
Board accordingly remitted the matter back to the Registry of Muslim
Marriages for a redetermination of the application and for the matter to
be properly re-assessed by a Kadi exercising his powers under s 95(2) of
the Act to make the necessary inquiries on whether any lawful
impediment to marriage between the parties existed: at [26].

Division of matrimonial assets

22.7 Just as the Appeal Board is empowered to consider issues at the

outset of marriages, so too it is often made to consider the matter of
ancillary orders that inexorably have to be considered upon the
dissolution of marriages. In Abdul Bashir s/o Saidek v Asiah binte Md
Hassan (Appeal Cases Nos 43 and 44 of 2013) ("Abdul Bashir"), the
Appeal Board had to consider the matter of appropriate ancillary orders
that are to be made as a result of the dissolution of a 33-year-long
marriage (resulting in the birth of four children). In so doing, the
Appeal Board issued some useful pronouncements on the appropriate
approach to be taken for division of matrimonial assets as a result of the
dissolution of relatively long marriages and on the need for parties to
provide sufficient factual evidence to the Syariah Court, instead of
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 SAL Annual Review (2014) 15 SAL Ann Rev

relying on unverifiable assertions and generalisations of the existence

and value of various matrimonial assets, to facilitate a principled
division by the Syariah Court.

22.8 Turning first to the matter of the division of assets, the Syariah
Court had, in the first instance, conferred on the wife approximately
49% of the matrimonial assets, and the husband, the remainder of such
assets. While broadly affirming the decision to award about half of the
matrimonial assets to each party on the facts of the case, the Appeal
Board was of the view that there ought not to be any starting
presumption of equal division of assets, noting that the proper
proportion to be given to each party, even in long marriages, is a largely
fact-specific question. In this connection, the Appeal Board observed
that the courts ought to respect the parties' attribution of roles in the
marriage and, to that end, should be slow to confer more assets on one
party just because he or she was the primary income earner in a
household (as an aside, it ought to be noted that this is aligned to the
position taken by the civil courts in Singapore: see in this regard ZO v
ZP [20111 3 SLR 647. As the Appeal Board observed (Abdul Bashir
at [19]) (after stating its general agreement with the proportions of
matrimonial assets ascribed by the Syariah Court to each party):
We ought to stress that this is not to suggest that all long marriages
ought to result in a largely equal division of assets between two parties.
Indeed, lest there be any mis-impression on this, on the contrary, we
accept that there ought not to be an uncritical startingpoint of equal
division and that in coming to a conclusion on the appropriatedivision
of assets to be made, it would be necessary for us to analyse the
contributionsof the parties to the marriage. We should further add that
one ought not equate the 'contributions'of a party with his/her financial
contributions' towards the purchase of any one asset ... indeed, as the
Courts have made clear time and time again, one ought to be very slow
to employ the financial contributions by a party as a determinative
barometer for the actual contributions of the parties to a marriage,
thereby necessarily warranting that a higher proportion of assets ought
to be given to the party who contributed more financially ...
[emphasis added]

22.9 On the facts, however, as the Syariah Court was not in

possession of the necessary information about the available asset pool to
facilitate a proper division of assets, the Appeal Board made some
modifications to the orders made by the Syariah Court in relation to
each of the matrimonial assets liable for division, noting that it had to
do so in order to give voice to its underlying intent of ensuring financial
parity between the parties. Even then, the Appeal Board noted that the
information provided by both parties throughout the process was so
lacking in particulars that it was able to do no more than adopt a robust
approach to the division of matrimonial assets in order to achieve rough

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(2014) 15 SAL Ann Rev Muslim Law

justice: Abdul Bashir at [351 and [36]. Noting that this stance was
unfortunately necessary in view of the parties' failure to provide
sufficient information that would facilitate a calibrated approach to the
division of assets interpartes,the Appeal Board issued a timely reminder
for parties to be cognisant of their obligations to facilitate a principled
division of assets by the court, observing that the failure to do so may be
to the prejudice of a principled and appropriate division of such
matrimonial assets (Abdul Bashir at [36]):
[W]e want to take this opportunity to impress the fact that the
difficulties plaguing [the exercise of dividing matrimonial assets
between the parties in this case] ought to serve as a timely reminder to
parties before the Syariah Court of the need to particularise their
claims where possible ... neither party [in this case] provided the
[Syariah Court] the necessaryfactual information necessary to arrive
at an appropriate outcome, with both parties preferring instead to rely
on unverifiable assertions and generalisations about the values of the
various assets ... We have attempted to vary the orders to achieve [the
end envisioned by the Syariah Court of near equal division inter
partes], though given that we are ... hampered considerably by the
lack of any clarity on the valuations of various assets, or indeed,
whether they were even 'assets' liable for division in the first place, as
both parties were satisfied to have some aspect of their cases rest
exclusively on their say-so, the responsibility for any such failure to do
so lies largely with the parties themselves. [emphasis in original]

Post-ancillary order: Delay in enforcement and wilful non-

compliance with court orders

22.10 Even after ancillary orders have been made, parties may still
seek recourse to the Syariah Court in a variety of follow-up matters
arising from such orders. In 2014, the Appeal Board issued two grounds
of decision that allowed it to consider two facets of such consequential
matters, namely, the situations under which consent orders made by the
Syariah Court can be varied (if at all) and the powers of the court (and,
by extension, the Appeal Board) to deal with situations where there has
been wilful non-compliance of such ancillary orders.

Delay in effecting sale of Singapore property

22.11 As the enforcement of Syariah Court orders by definition

assumes that both parties involved in divorce proceedings would take
proactive stances to give effect to such orders within a reasonable period
of time, delays in giving voice to the orders of the Syariah Court to
dispose of matrimonial property can considerably complicate the
process of a principled and orderly division of assets, especially in
situations where changes in market conditions result in the value of

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 SAL Annual Review (2014) 15 SAL Ann Rev

matrimonial properties either appreciating or depreciating significantly

and where the prospect of such delays are not explicitly catered for in
such orders. In such instances, parties may be incentivised to apply for a
further variation of such orders. This process is particularly complicated
in cases involving consent orders where, given the paucity of documents
surrounding the motivations of each party underlying such an
agreement, the court is often considerably hampered in ascertaining the
parties' intentions in coming to an initial agreement (so as to ensure that
any variation, if allowed, is in line with the parties' initial intentions)
and in taking into account the possible contributions made by the
parties to the matrimonial asset in the time between the order being
made and when such application for a variation is filed. Cheong Kong
Chuan v Zunaidah binte Shahul Hamid (Appeal Case No 8 of 2013)
("Cheong Kong Chuan") serves as an exemplification of this point.

22.12 The subject matter of the dispute between the parties in Cheong
Kong Chuan was the proper disposal of the matrimonial home of the
parties upon divorce. A brief chronology of events would provide the
context to how the dispute came about. On 25 August 2009, the Syariah
Court had ordered, inter alia, for the proceeds of the sale to be
apportioned in a 70:30 proportion between the respondent (wife) and
the appellant (husband), after all the expenses for the outstanding
Housing and Development Board ("HDB") loan, the necessary refunds
to the parties' respective Central Provident Fund ("CPF") accounts and
the expenses for such sale had been deducted ("the relevant initial
order"). Thereafter, after some further negotiation between the parties,
both sides agreed, on 9 November 2010, to a variation of the relevant
initial order under which the appellant agreed that he would "refund the
respondent a sum of $213,000 in the [appellant's] CPF account" and
would bear full costs of such transfer ("the consent order"). It was also
agreed between the parties at the time that the transfer would take place
within a month. It would be of moment to note that at the time of such
variation order, the respondent's CPF contributions to the property had
been some $231,773.69.

22.13 Unfortunately, no steps were taken by either party to give effect

to the consent order. Throughout the course of this time, the respondent
continued to make CPF contributions in discharge of the HDB loan.
Consequently, sometime in March 2011, the respondent applied to the
Syariah Court for a further variation to the consent order, seeking an
order for the court to transfer the matrimonial home to her instead.
This application was dismissed in limine, though the Syariah Court
extended the validity of the consent order by a further three months so
as to facilitate the transfer of the matrimonial home in the manner
envisioned by such an order. Almost immediately thereafter, the
respondent filed a further application, this time requesting for a refund
of all CPF moneys, together with accrued interest, that had been used
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(2014) 15 SAL Ann Rev Muslim Law

for payment for the matrimonial home. By this time, her CPF
contributions had swelled to about $254,718.95. The appellant, in
response, applied to strike out the application.

22.14 By way of context, it would be useful to note that under s 52(6)

of the Act, the Syariah Court would only be empowered to effect a
variation of previously issued orders (including consent orders) on
certain grounds. In particular, the provision makes plain that such
variation would only be allowed where the court is satisfied that the
initial order:
... was based on any misrepresentation or mistake of fact or where
there has been any material change in the circumstances, or for other
good cause being shown to the satisfaction of the Court. [emphasis
added]

Before the Syariah Court, it was contended by the respondent that the
consent order ought to be varied because of the upturn in the property
market (it was not in dispute between the parties that the property
market had, after the time the consent order was made, experienced a
significant upturn) and the fact that the delay in execution of the
consent order had unduly penalised her in view of her continued
financial contributions via her CPF account towards the discharge of the
HDB loan. The appellant, perhaps unsurprisingly, took the position that
no variation ought to be effected, contending that there had been no
"material change in circumstances" since the time the consent order was
entered into.

22.15 The Syariah Court granted the variation sought by the

respondent. In its view, given that the respondent had continued to
service the HDB loan through her continued CPF contributions, and the
fact that the property market had vastly improved since the consent
order was made, to deprive her of a full refund of all her CPF moneys
would "be unfair and grossly inequitable to her". The appellant appealed
against the decision of the Syariah Court.

22.16 On appeal, the Appeal Board expressed scepticism as to

whether there had been "any material change in the circumstances".
After studying other jurisprudential developments on that front both in
the Islamic courts and in the civil courts, the Appeal Board concluded
that the weight of jurisprudence suggested that exceptional
circumstances ought to exist before consent orders could be varied on
the premise of there having been a "material change in the
circumstances": at [181-[22]. This, it observed, was not unexpected
given the significant virtue in the finality of decisions vis--vis the
disposal of matrimonial assets, especially in cases involving consent
orders and particularly so where the parties had entered into such
orders while having had the benefit of legal advice. Applying that
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 SAL Annual Review (2014) 15 SAL Ann Rev

approach to the matter before it, the Appeal Board observed that on the
facts, the parties appeared to have entered into the consent order
knowing full well that one possible outcome was that the execution of
the consent order may be delayed (as the appellant was required to take
some preliminary steps before he was eligible to own a HDB flat in his
own name) - it would therefore follow that the manner in which the
matter had unfolded was entirely foreseeable: at [23] and [24]. In the
same vein, the Appeal Board observed that as intuitively unfair as the
terms may have been when seen through the lenses of an ever-ascending
property market, in view of the need for fidelity to consent orders
entered into at arm's length between the parties, this, per se, was not a
sufficient basis for varying the consent order: at [25].

22.17 Having concluded that there was no "material change in

circumstances" that would warrant a variation, the Appeal Board then
proceeded to consider the question of whether there was any "other
good cause" that would, nonetheless, permit it to invoke the powers of
variation provided for under s 52(6) of the Act. Noting that this was,
essentially, a matter that could only be decided by way of reference to
the unique facts of each case, the Appeal Board observed that the
respondent had faithfully continued to make CPF contributions even
after entering into the consent order, and that to deny her any relief in
those circumstances would accordingly be to allow the appellant
(at [28]):
... to take undue advantage of the [respondent's] decision not to
suspend payments from the time of the consent order, and would
serve to unduly enrich the [appellant] with the continued
contributions of the [respondent] to the discharging of the housing
loan.

For that reason, the Appeal Board took the view that, having regard to
the equities of the case, not effecting a variation with a view to
reimbursing the respondent for her out of pocket expenses incurred
through her continued CPF contributions in discharge of the HDB loan
would be unequitable since it would allow the appellant to receive an
undeserved windfall from his inaction: at [28]- [29].

22.18 Having found that there was sufficient basis to vary the consent
order on the premise of there being sufficient "other good cause" to do
so, the Appeal Board, nonetheless, took the view that upholding the
order of the Syariah Court would have resulted in an overly generous
compensation to the wife and emasculated the essence of the financial
terms that had been agreed by the parties in the consent order. Noting
that the wife had, at the time of the consent order, agreed to accept a
shortfall of $18,473.69 in CPF contributions (that is, $231,773.69 less
$213,300), and having regard to the need to "balance the countervailing
considerations of the need to ensure fidelity to the consent order, an
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agreement that has been struck at arms-length, and the need to give
voice to an equitable solution in this case that places some premium on
the wife's decision to continue making payments to the HDB even after
the consent order has been entered into', the Appeal Board varied the
order of the Syariah Court by reducing the sum awarded by $14,000:
at [30] and [32].

Wilful non-compliance with court orders

22.19 Finally, in Ronald Dominic Gallyot @ Iskandar bin Abdullah v

Manisah bte Abdul Wahab (Appeal Case No 5 of 2014), the Appeal
Board had to consider the proper approach to be adopted in dealing
with the conduct of parties in apparent disregard of its orders. In that
case, the parties had divorced in 2007 and as part of its ancillary orders,
the Syariah Court had ordered for the parties' matrimonial home in
Malaysia (which was registered in the name of the appellant) to be sold
in the open market, with the net proceeds of such a sale (less the
amounts paid by each party for the matrimonial property, any
outstanding liabilities and the costs of the sale) being apportioned
equally inter partes ("the relevant order"). Curiously, neither party took
any action to enforce the order in question thereafter until October
2012, when the respondent sought relief from the Syariah Court to give
effect to the relevant order by allowing her to obtain vacant possession
of the matrimonial home with a view to giving effect to the relevant
order (that is, by allowing her to effect the sale of the matrimonial home
and to give voice to the orders of the Syariah Court as to the division of
proceeds). Eventually, the appellant disclosed that the matrimonial
home had already been sold without the respondent's knowledge, and
claimed that after having taken into account the expenses of such a sale,
there was no profit arising from the sale (and accordingly, no available
sums of money to distribute under the relevant order). The respondent
challenged this assertion, and before the Syariah Court contended that
the appellant had not disclosed such profits from the sale.

22.20 The Syariah Court, having considered the evidence, agreed with
the respondent that, having regard to the facts, the sale must have in fact
been profitable and that the appellant had been deceitful and had tried
to circumvent the spirit of the relevant order by denying the respondent
her fair share of such profits. It highlighted in no uncertain terms that it
took an extremely dim view of the appellant's conduct, noting in
particular the fact that no attempt had been made by the appellant to
keep the respondent updated of any such sale. Having considered the
evidence of the value of the property and the quantum of the
outstanding loan, the Syariah Court opined that a fair assessment of the
profits in this case would be $64,000 (this composite amount, which
equated to about RM160,000 at the relevant time, comprised about a
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50% share of the anticipated profits of about RM200,000, together with

the amount of about RM60,000 that had been paid by the respondent
for the purchase of such matrimonial property). Significantly, in view of
the appellant's conduct, the Syariah Court refused any attempted
deduction by the appellant for continued mortgage payments prior to
such purported sale as well as for ostensible maintenance and
renovation costs incurred during such time.

22.21 On appeal, the Appeal Board upheld the decision of the Syariah
Court. At the core, the Appeal Board noted that the appellant's
arguments appeared to revolve around the incurring of various
additional renovation and maintenance expenses that, he had argued,
possessed a considerable impact on the sums available for distribution
in accordance with the relevant order. Noting the appellant's claim in
this regard of incurring significant costs for the upkeep of the property
appeared "suspicious", and "odd and unsatisfactory", the Appeal Board
noted that the appellant's conduct in toto was suggestive of an individual
who had been out to deliberately frustrate the operation of the relevant
order: at [25]. In any event, the Appeal Board observed that even if the
appellant did in fact incur such costs, the fact that a conscious decision
had been made by the appellant to incur such renovation and
maintenance costs without seeking the consent of the Syariah Court (or
indeed, it might be noted, from the respondent) meant that any credit
given to him for the incurring of such costs would be tantamount to a
legitimisation of unilateral actions inconsistent with the relevant order.
In the final analysis, the Appeal Board noted that individuals who acted
dishonourably and had caused hardship and unfairness to the other
party involved in divorce proceedings ought not to be allowed to seek
relief from the unfavourable consequences of such behaviour: at [26]
and [28].

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