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LEGAL BACKGROUND
Type of Government: Constitutional
Monarchy
Central government
13 State governments

CENTRAL GOVERNMENT
Chief of State: Yang di-Pertuan Agong
king/constitutional monarch; primarily ceremonial
elected by and from the hereditary rulers of nine of
the states

Prime minister
designated from among the members of the House of
Representatives

Cabinet of ministers
appointed by the prime minister from among the
members of Parliament with consent of the king

STATE GOVERNMENT
Sultans
Hereditary rulers
Except Malacca, Penang, Sabah and Serawak
Governors appointed by government

LEGISLATIVE
Parliament bicameral
Senate or Dewan Negara
House of Representatives or Dewan Rakyat

Each state has legislature

JUDICIAL
Dual judicial hierarchy
Civil courts
Religious courts

Federal Court

LEGAL SYSTEM OF MALAYSIA

Mixed legal system of:
English common law - relies heavily on case law or
judicial opinions
Islamic law
Customary law - in matters of personal law, such as
marriage and divorce and inheritance

Judicial review of legislative acts in the

Supreme Court
At the request of supreme head of the federation

MALAYSIAN LEGISLATION
Mixed legal system of:
Federal Constitution
Constitution of each of the 13 states
Federal acts of the parliament
State enactments
Subsidiary legislation
Case law

CONSTITUTION OF MALAYSIA
Federal list regarding Civil and Criminal law and
procedure and the administration of justice
(4(e))
Subject to paragraph (ii), the following:
i. (Contract, partnership, agency and other special
contract; xxxx equity and trusts, marriage, divorce,
legitimacy; married womens property and
status; xxxx arbitration; xxxx age of majority;
infants and minors; adoption; succession,
testate and intestate; xxxx;
ii. (the matters mentioned in paragraph (i) do not
include Islamic personal law relating to marriage,
divorce, guardianship, maintenance, adoption,
legitimacy, family law, gifts or succession, testate
and intestate.

CONSTITUTION OF MALAYSIA
State List (1)
Except with respect to the Federal Territories of Kuala Lumpur
and Labuan, Islamic law and personal and family law of
persons professing the religion of Islam, including the Islamic
law relating to succession, testate and intestate, betrothal,
marriage, divorce, dower, maintenance, adoption, legitimacy,
guardianship, gifts, partitions and non-charitable trusts; xxxx
the constitution, organisation and procedure of Syariah courts,
which shall have jurisdiction only over person professing the
religion of Islam and in respect only of any of the matters
included in this paragraph, but shall not have jurisdiction in
respect of offences except in so far as conferred by federal
law*, the control of propagating doctrines and beliefs among
persons professing the religion of Islam; the determination of
matters of Islamic law and doctrine Malay custom.

CONSTITUTION OF MALAYSIA
Supplement to State List for State of Sabah and Sarawak
Native law and custom, including the personal law
relating to marriage, divorce, guardianship,
maintenance, adoption, legitimacy, family law,
gifts or succession testate or intestate; registration of
adoptions under native law or custom; the
determination of matters of native law or custom; the
constitution, organization and procedure of native
courts (including the right of audience in such courts),
and the jurisdiction and powers of such courts, which
shall extend only to the matters included in this
paragraph and shall not include jurisdiction in respect
of offences except in so far as conferred by federal
law.

CONSTITUTION OF MALAYSIA
Supplement to Concurrent List for State of
Sabah and Sarawak
Personal law relating to marriage, divorce,
guardianship, maintenance, adoption,
legitimacy, family law, gifts or succession
testate and intestate.

ISLAMIC FAMILY LAW (FEDERAL

TERRITORIES) ACT 1984
Act 303
king/constitutional monarch; primarily ceremonial
Exclusive applicability to persons professing the
Islam faith
Under the exclusive jurisdiction of the Syariah
Courts
Formalities in contracting the marriage (License,
Solemnities, Registration), as well as the Prohibited
relationships, are practically the same with the nonMuslim law
Dissolution of Marriage, Maintenance of Wife, Children
and Others, Guardianship

ACT 303
Marriage of a woman
14. (1) No woman shall, during the subsistence
of her marriage to a man, be married to any
other man.
(2) Where the woman is a janda
(a) subject to paragraph (c), she shall not,
at any time prior to the expiry of the
period of iddah, which shall be
calculated in accordance with Hukum
Syarak, be married to any person
other than to the man from whom she
was last divorced;

ACT 303
(b) she shall not be married unless she has
produced
(i) a certificate of divorce lawfully issued under
the law for the time being in force; or
(ii) a certified copy of the entry relating to her
divorce in the appropriate register of divorce;
or
(iii) a certificate, which may, upon her
application, be granted after due inquiry by
the Syariah Judge having jurisdiction in the
place where the application is made, to the
effect that she is a janda;

ACT 303
(c) if the divorce was by ba-in kubra, that
is to say, three talaq, she shall not be
remarried to her previous husband, unless
she has been lawfully married to some other
person and the marriage has been
consummated and later lawfully dissolved,
and the period of iddah has expired.

ACT 303
(3) If the woman alleges she was divorced before the
marriage had been consummated, she shall not,
during the ordinary period of iddah for a divorce, be
married to any person other than her previous
husband, except with the permission of the Syariah
Judge having jurisdiction in the place where she
resides.
(4) Where the woman is a widow
a) she shall not be married to any person at any
time prior to the expiration of the period of
iddah, which shall be calculated in accordance
with Hukum Syarak;
b) she shall not be married unless she has produced
a certificate of the death of her late husband or
otherwise proved his death.

ACT 303
Dissolution of Marriage
Change of religion
Divorce by talaq or by order

LAW REFORM (MARRIAGE AND DIVORCE)

ACT
LRA 1976
Specifically excludes its application to
persons professing the religion of Islam
Marriage, Divorce, Protection of Children
Validity of marriage are essentially the same
with the Philippines (Requisites, Prohibited
relationship, Solemnities)

LRA 1976
Divorce
Dissolution on ground of conversion to Islam
Dissolution by mutual consent
Breakdown of marriage
Judicial Separation
Nullity of Marriage
Void
Voidable
Protection of Children

LRA 1976
Dissolution on ground of conversion to Islam
51. (1) Where one party to a marriage has converted to
Islam, the other party who has not so converted may petition
for divorce:
Provided that no petition under this section shall be presented
before the expiration of the period of three months from the
date of the conversion.
(2) The Court upon dissolving the marriage may make provision
for the wife or husband, and for the support, care and custody
of the children of the marriage, if any, and may attach any
conditions to the decree of the dissolution as it thinks fit.
(3) Section 50 shall not apply to any petition for divorce under
this section.

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MEDIATION BILL 2012

General provisions
An act to promote and encourage mediation as
a method of alternative dispute resolution
Inapplicable to:
Mediation conducted by a judge or magistrate
or officer of the court pursuant to civil action
Mediation conducted by the Legal Aid
Department

MEDIATION BILL 2012

Parties voluntarily submit themselves to

mediation
Parties choose the mediatior
Subject to relevant qualifications and
experience
Satisfy the requirements of an institution
Settlement agreement, if signed by the
parties, is binding on the parties

ARBITRATION ACT

Domestic arbitration as well as

international arbitration
Governs any dispute which the parties
agree to submit to arbitration
Inapplicable if there is a written law to the
contrary
Parties are free to appoint arbitrator
Arbitral tribunal
The award made by arbitrator is binding

PRACTICE DIRECTION NO. 5

Judge-led Mediation
Suspension of proceedings
Jurisdiction passes to another judge
Court-referred Mediation
Mediator is chosen from a list of certified
mediators furnished by the MMC
Parties may choose to be bound

MALAYSIAN MEDIATION CENTRE

It is established under the auspices of the Bar

Council with the objectives of promoting
Mediation as a means of alternative dispute
resolution and to provide a proper avenue for
successful dispute resolution.
Currently the Centre accepts civil, commercial
and matrimonial matters and intends to expand
the scope to other matters at a later stage

KUALA LUMPUR COURT MEDIATION CENTRE

The court-annexed mediation program is a free

mediation program using judges as
mediators to help disputing parties in litigation
to find a solution. It is a service provided by the
judiciary as an alternative to a trial which is a
win-lose proposition.

KUALA LUMPUR COURT MEDIATION CENTRE

The High Court and the Sessions Court in Kuala

Lumpur, either on its own motion or upon the
request of any party, make an Order of Referral
to the Mediation Centre of any action that has
been instituted in the civil court which is suitable
for mediation.

ISLAMIC DISPUTE RESOLUTION

i.

Nasihah (Counselling);

ii. Sulh (Negotiation, mediation, conciliation, compromise of action);

iii. Tahkim (Arbitration);
iv. Med-Arb (A process that begins with mediation and ends in
arbitration);
v. Muhtasib (Ombudsman);
vi. Wali al-Mazalim (Chancellor or Ombudsman Judge);
vii. Fatwa of Mufti (Expert Determination);
viii.Med-Ex (A combination of mediation and expert determination);
and
ix. Qada (adjudication).

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LAW REFORM (MARRIAGE AND DIVORCE)

ACT 1976

Provisions designed to encourage reconciliation

Contents of divorce petition

Requirement of reference to conciliatory body

before petition for divorce

LAW REFORM (MARRIAGE AND DIVORCE)

ACT 1976

Provision may be made by rules of court for

requiring that before the presentation of a
petition for divorce the petitioner shall have
recourse to the assistance and advice of
such persons or bodies as may be made
available for the purpose of effecting a
reconciliation between parties to a marriage
who have become estranged

LAW REFORM (MARRIAGE AND DIVORCE)

ACT 1976

If at any stage of proceedings for divorce it

appears to the court that there is a reasonable
possibility of a reconciliation between the
parties to the marriage, the court may adjourn
the proceedings for such period as it thinks
fit to enable attempts to be made to effect
such a reconciliation

LAW REFORM (MARRIAGE AND DIVORCE)

ACT 1976

Every petition for a divorce shall state what

steps had been taken to effect a
reconciliation
No person shall petition for divorce, except under
sections 51 and 52, unless he or she has first
referred the matrimonial difficulty to a
conciliatory body and that body has certified
that it has failed to reconcile the parties.

ISLAMIC FAMILY LAW ACT

Divorce by talaq or by order

Conciliation of parties
Arbitration by Hakam
Close relative or other person appointed by the
court
May pronounce one talaq
Also known as Suhl

ISLAMIC FAMILY LAW ACT

A husband or a wife who desires divorce shall

present an application for divorce to the Court in
the prescribed form, accompanied by a
declaration containing a statement as to
whether any, and, if so, what steps had been
taken to effect reconciliation

ISLAMIC FAMILY LAW ACT

Where the other party does not consent to the

divorce or it appears to the Court that there is
reasonable possibility of a reconciliation
between the parties, the Court shall as soon as
possible appoint a conciliatory committee
consisting of a Religious Officer as Chairman and
two other persons, one to act for the husband
and the other for the wife, and refer the case to
the committee

ISLAMIC FAMILY LAW ACT

If satisfied that there are constant quarrels

(shiqaq) between the parties to a marriage, the
Court may appoint in accordance with Hukum
Syarak two arbitrators or Hakam to act for the
husband and wife respectively.
In appointing the Hakam under subsection (1),
the Court shall, where possible, give preference
to close relatives of the parties having
knowledge of the circumstances of the case.

ISLAMIC FAMILY LAW ACT

If the Hakam are of the opinion that the parties

should be divorced but are unable for any reason
to order a divorce, the Court shall appoint other
Hakam and shall confer on them authority to
order a divorce and shall, if they do so, record the
order and send a certified copy of the record to
the appropriate Registrar and to the Chief
Registrar for registration

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ISLAMIC FAMILY LAW ACT

Physical Custody
A child below the age of mumaiyyiz
(discernment 9-11 years for a daughter and 79 years for a son) will stay with the mother,
A child above that age has the right to choose
between the two parents
Disqualify persons who are non-Muslims or not
practising Muslims from being granted custody
of children

ISLAMIC FAMILY LAW ACT

Legal Guardianship
The father is the first and primary natural
guardian of the person and property of his
minor child.
Provided that he is a Muslim, an adult, sane,
and worthy of trust.

GUARDIANSHIP OF INFANTS ACT

1961
The father is the preferred guardian
1999
In relation to the custody or upbringing of an
infant or the administration of any property
belonging to or held in trust for an infant or the
application of the income of any such property,
a mother shall have the same rights and
authority as the law allows to a father, and the
rights and authority of mother and father
shall be equal

ADR IN CUSTODY MATTERS

Generally there is no mandatory provision on

alternative dispute resolution regarding
custody
Usually included in settlements regarding divorce

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DOMESTIC VIOLENCE ACT OF 1994

Section 11
The parties concerned be referred to a
conciliatory body
In this section conciliatory body includes
bodies providing counselling services set up
under the Department of Social Welfare and, in
the case where the parties are Muslims, also
includes those set up under the Islamic
Religious Affairs Department concerned

ADR IN VIOLENCE AGAINST WOMEN AND

CHILDREN

No provision on ADR regarding unmarried parties.

There are only penal laws

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PHILIPPINES
1. State policy as embodied in the 1987 Constitution
2. Family Code

Domicile
Profession
Administration of property
Parental authority and guardianship

3. Civil Code provisions

Foundation
Basic social institution
Earnest efforts towards compromise
Prescription
Compromise

PHILIPPINES
6. Rules on Declaration of Nullity of Marriages, Annulment,
Legal Separation
7. Establishment of Family Courts
8. Court-Annexed Family Mediation and the Philippine
Mediation Center

MALAYSIA
1. State policy specifically geared towards reconciliation
2. Two sets of laws that are applicable in personal matters
of intestacy, marriage, divorce, custody of children and
division of assets on the breakdown of a marriage

Muslims
Non-Muslims

3. LRA and the Islamic Family Law Act

4. Family disputes are heard by the ordinary civil courts
(except in Kuala Lumpur, where one specific civil court
has been designated to hear family disputes) and the
Syariahcourts

MALAYSIA
5.

The main Malaysian statutes governing the breakdown of

marriage and the welfare of children (for non-Muslims) are:
Law Reform (Marriage & Divorce) Act 1976 (Act 164) (LRA).
Guardianship of Infants Act 1961 (GIA).
Child Act 2001, which deals primarily with children in need
of care, protection and rehabilitation, and related matters.
Married Women Act 1957.
Married Women & Children (Maintenance) Act 1950
(MWCMA).
Married Women & Children (Enforcement of Maintenance)
Act 1968.

MALAYSIA
6. Malaysia has had an administrative form of
mandatory family mediation service for
Muslims known as Sulh since 2002. A similar
service has been provided for the substantial
non-Muslim population, albeit not as
extensive.

MALAYSIA
7. Otherwise, there is no statutory compulsion
for mediation in Malaysia. However, following
a Practice Direction dated 13 August 2010, after
the close of pleadings in a matrimonial dispute,
the court will normally fix a date for an incourt mediation, either before a registrar or a
judge with solicitors present. If the parties do
reach agreement on terms, a consent order is
recorded.

COMPARISON
1. Both have state policies that are geared
towards the preservation of the family
2. Mediation more mandatory and more
extensive in the Philippines
3. More centralized laws on marriage and family
relations in Malaysia
4. Dual system of laws has given rise to much
controversy
Muslim and non-Muslim marriages