Children Of Syariah Marriages In Singapore
Welfare of Child is Paramount
The overarching principle applied by the Courts in deciding on custody, care and control of the child is that the welfare of the child is of paramount consideration. This is a principle that applies under Civil law as well as Syariah law. The parents’ wishes and desires are secondary, and the child’s best interest and well-being is the dominant consideration. This principle is elucidated clearly in section 3 of the Guardianship of Infants Act: “Where in any proceedings before any court 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 thereof is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration and save in so far as such welfare otherwise requires the father of an infant shall not be deemed to have any right superior to that of the mother in respect of such custody, administration or application nor shall the mother be deemed to have any claim superior to that of the father.” This has also been recognized under Syariah law. In the case of Jasmin Ismali Frost @ Melor bt Ismail v Adam Alexander Frost @ Adam Frost (Appeal No. 45/2014), it was noted that “Islamic law requires that the parents must place the best interest of the child before their own”. This principle has shifted the Syariah Court’s consideration in various ways. For example, traditionally it is recognized that the right of custody of a child following divorce goes to the child’s mother, provided that she is a Muslim, of sound mind and trustworthy. The mother is entitled to custody of her son until he reaches seven years of age and her daughter until she has attained puberty. This right to custody continues though she is divorced from the father unless she remarries in which case the custody belongs to the father. In incorporating the above principle, the Syariah Court’s take into account not just parent centric considerations but child centric considerations as well. This is illustrated in various child custody issues in relation to Muslim families, with examples from cases which the decisions of the Syariah Court are appealed in the MUIS Appeal Board.
Greater Consideration to the Welfare of the Child
Parents must provide the Syariah Court with all the relevant and material facts that would enable the Syariah Court to make a decision that is in the best interest of the child. It has been recognised by Syariah Court that generally, at a tender age of 2 years old, the child’s interest would be better served if that child stays with the mother. However, as the child grows up, the father has the obligation to nurture the child’s growth according to Islamic principles. The father may then be granted greater access time to the child. Further, it is important for the father to have more contact with the child. It is not in the interest of the child to be constantly kept at a distance from the father. The father should, therefore, be able to forge a closer link and rapport with the child. Traditionally, adultery has been given significant consideration in deciding custody. The Syariah Court would give significant weight against the party committed adultery in considering care, custody and control. However, in Appeal Case No 28/2010, the MUIS Appeal Board awarded care and control of the children to the mother despite her having an affair. It was held that the affair had no bearing on the wife’s suitability to be a good caregiver to the children. This underlines the shifting focus where the child’s welfare being of utmost importance. In some cases, the Courts would even override the child’s wishes if it finds that it has to decide otherwise in the welfare of the child. Once the child is about seven years of age, he or she can express his or her wishes as to which parent he or she prefers to live with. In Appeal Case No 15/2010, the children had expressed their wishes to stay with their father. The Syariah Court initially granted care and control to their father. However, the MUIS Appeal Board reversed the decision and held that although the children would prefer the father’s laidback attitude towards their upbringing, it would not be in their best interest if there is an absence of structure to inculcate discipline. The wishes of the children are still an important consideration when deciding who would get care, custody and control. However, the ultimate determinant will still be the welfare of the children in the circumstances of the case.
Thus in conclusion, the paramount principle of the best interest of the child will play a determinative consideration in awarding custody, care and control even in cases in the Syariah Courts. In such a shifting legal landscape, it is important to get legal help which is cognizant of the nuances of each individual case.
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