Divorcee unable to divide assets due to gap between Syariah, civil law

A Singapore High Court judgment, involving a Muslim couple who divorced in a Johor Syariah Court, has pointed out a gap in the law here.

In the case, the 52-year-old man divorced the woman, 37, in 2012 - allegedly without telling her.

They are Singaporeans who have two young children and were living in Johor at the time, although they have a Housing Board flat in Singapore. Following the split, the woman applied to the courts here to divide their assets.

But she hit a snag: Both the Syariah Court and the High Court here ruled that they had no power under current laws to deal with the case.

"This case demonstrates an area deserving of a review for possible law reform," said Judicial Commissioner Debbie Ong in judgment grounds released on Tuesday .

At issue is the division of the couple's assets upon divorcing. Under the Women's Charter, which was amended in 2011, litigants who divorce abroad can seek financial relief here. However, certain parts of the current charter are not applicable to those married under Muslim law, such as the division of matrimonial assets .

The judge said: "Parliament did not appear to have addressed its mind to a situation in which parties to a Muslim marriage could fall outside the jurisdiction of the Syariah Court and the Civil Court, leaving them with no recourse ."

The housewife in the case had applied initially to the Singapore Syariah Court to divide the assets, but it declined as it was not the court which dissolved the marriage.

The woman did not go to the Johor court as its division of their HDB flat would not have been enforceable in Singapore. This is based on a 2014 Singapore High Court decision. Her lawyer Mohamed Ibrahim Yakub from Achievers LLC applied to the Family Court for the division based on the foreign divorce provision in the Women's Charter.

But District Judge Geraldine Kang ruled the court had no power and rejected the case last June.

The woman then appealed to the High Court. This is when the judicial commissioner pointed out that those married under Muslim law are specifically excluded from the key provision in the Women's Charter that would have enabled the division of assets. The law has to be changed to include Muslim marriages in relation to the division of matrimonial assets.

The judicial commissioner said the present case showed up a "lacuna", or gap, that arose from the separation of powers between the Syariah Court and the civil courts. "Whether the current lacuna in which the (ex-wife) is unable to obtain a division order in both courts ought to be plugged - and if so, ought to be addressed as a provision in the Administration of Muslim Law Act or the SCJA - is a matter for Parliament to decide," she said.

In dismissing the appeal, she concluded: "I sympathise with the (ex-wife) who appears to have fallen into the lacuna described above."

The woman's lawyer said his client is considering further options to pursue the case.

A version of this article appeared in the print edition of The Straits Times on April 09, 2016, with the headline 'Divorcee unable to divide assets due to gap between Syariah, civil law'. Print Edition | Subscribe