This article discusses the Muslim law relating to and the approach taken by the Syariah Court in determining the issue of custody of minor children in divorce proceedings.
The Syariah Court of Singapore is given the power by law to hear and make decisions in divorce proceedings in Singapore between Muslim spouses and where the divorcing spouses were married in accordance with Muslim law: Section 35(2) of the Administration of Muslim Law (AMLA). Further, either of the divorcing spouses must be domiciled in Singapore at the time the divorce proceedings are commenced, or habitually resident in Singapore for a period of at least 3 years immediately before the divorce proceedings are commenced: Section 35(2)(A) of AMLA.
In divorce proceedings, one of the several issues which the Court must make a decision on is that of the custody of the children of the marriage who are below 21 years of age (the minor children of the marriage): Section 52(3)(c) of AMLA. The Court does not make any ruling on the custody of the children of the marriage who are 21 years or older. A child who has been legally adopted by the divorcing spouses is treated as a child of the marriage.
Muslim Law On Custody Of Children
Muslim law provides specific rules which determine the custody of a child upon the divorce of his/her parents (hukum hadhanah). One such rule is that a child below the age of 7 will generally be placed in his or her mother’s care, whereas an older child will be asked with which parent he or she wishes to live with after the divorce. Another rule is that a mother loses her custodial rights once she remarries.
There are many other such rules, but all these rules are subject to the predominant consideration of the child’s welfare or best interest. So, for example, the Court may ignore the wish of a 12 year old child to live with his/her father if, in the circumstances of the case, the Court feels that the child’s welfare or best interest will be best served if he/she is placed in the mother’s care instead. Or upon consideration of a child’s welfare or best interest, the Court may permit a child to continue to live with his/her mother notwithstanding the fact that the mother has remarried.
Since the predominant consideration is the child’s welfare or best interest, the wishes of the child’s parents (the divorcing spouses) are secondary.
Under Muslim law, a child’s “welfare” extends beyond his/her material or physical welfare and includes the child’s spiritual or religious welfare.
Legal Concepts: Custody, Care And Control And Access
In law, “custody” refers to the right to make major decisions in relation to a child’s healthcare and education (including religious education). The approach taken by the Syariah Court on the issue of custody is the same as that of the civil law courts: the divorcing spouses are usually given “joint custody” of their child unless it can be shown that either of them has committed violence against or has abused the child.
“Care and control” refers to the right to make decisions relating to a child’s day-to-day activities. The child will live with and be cared for by the parent who is given his/her care and control.
“Access” refers to the right of the parent who does not have a child’s care and control to see and be with the child. For example, the parent may be given overnight access to the child on alternate weekends for a fixed duration of time, or access to the child on certain public holidays for a fixed duration of time, or access to the child for the duration of half of the child’s mid-year and year-end school holidays. The parent’s access can also be “reasonable” with no fixed days and times. Access orders take many forms depending on the circumstances of each case.
In arriving at its decision on the issues of custody, care and control and access of a child, the Court will have regard to the relevant principles of Muslim law and the paramount consideration of the child’s welfare and best interest. In certain cases, the Court may call for a report on the child from the Ministry of Social and Family Development or other social services agencies to aid the Court in this often difficult decision-making process.
In the case of Mohd Fadly Bin Saaid v Raba’ah Binte Roszini (Appeal No. 14/2010), the Appeal Board laid down several general principles governing the determination of the issue of custody of a child in Muslim divorces:
- it is an established principle of Islamic law as administered under AMLA that in determining which parent should have custody and care and control of a child upon divorce, the interest of the child is paramount and should prevail over all other interests. This requires an objective assessment of what is best for the child after taking into account all the circumstances of each case such as the age of the child and his or her day to day needs (whether food, clothing, education or medical needs);
- in this exercise, the Court is not seeking to determine who is the better parent. There is no fault-finding, no apportionment of blame and certainly no judgment on which parent loves the child more or less or even who is the better parent;
- the idea that one parent should be deemed so incapable to discharge parental duties and should therefore almost disappear from the face of the earth just because there is a divorce is an unhealthy one and should be firmly rejected;
- the parties must assist the Court by calmly and sensibly providing the Court with all the relevant and material facts that would enable the Court to make a decision that is in the best interest of the child;
- any parent may disagree with the decision of the Court but if he or she sincerely wants to act in the best interest of the child, he or she must comply with the order both to the letter and in spirit; and
- the practice of influencing a child to stay away from one parent or another should be stopped because sowing hatreds and dislikes and breaking up family bonds is incongruous with the Islamic principles of maintaining sillaturrahim and enjoining others to do good.