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Who is affected by Islamic Family Law? How does IFL different than the other family law?
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Art. 74- subject matter of federal and state laws Second List of the Ninth Schedule- Clause 1
1. Islamic law 2. Personal and family law of persons professing the religion of Islam, including the Islamic Law relating to succession, testate and intestate, bethrotal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partition and charitable trusts, Wakafs and the definition of charitable and religious trusts, the appointment of trustees..
Non- Muslims are subjected to the LRA - Syariah Courts have no jurisdiction over Non- Muslims
Art 121:
(1) There shall be two High Courts of co- ordinate
jurisdiction and status.. (1A) the courts referred to in clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of Syariah courts
Syariah Courts have no jurisdiction over NonMuslims Any claim made by non- Muslim against Muslims in family matters shall be brought to Civil Courts and it shall have jurisdiction to decide the matter even if it will affect the interest of the Muslims.
Though the term domicile and residence are commonly used in the LRA they are not defined.
Therefore the Civil Law Act 1956 becomes relevant Section 3 (1) of the Act provides that: Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia, the court shall(a) In West Malaysia or any part thereof, apply the common lay of England and the rules of equity as administered in England on the 7th day of April 1956. (b) Sabah (c) Sarawak Thus, rules pertaining to domicile and residence in Malaysia, the common law and equity still apply
permanently residing there, the animus manendi, or the absence of any present intention of permanently leaving it, even if as a fact the person who claims domicile is not physically present at any given time.
The civil status of a person, or his legal rights and duties, including capacity to marry are determined by the law of his domicile
Legal consequences
Application of law over a person
DOMICILE OF ORIGIN
- Everyone has a domicile of origin
- This is obtained at birth, following his father if legitimate and mother, if illegitimate
- Carry it through the lifetime
- When a person acquire domicile of choice, his domicile of origin will be suspended
- If then the domicile of choice is relinquished, the
DOMICILE OF CHOICE
Can be acquired by any adult E.g. in Malaysia when he reach 18 yrs of age Female may only have DOC if she is 18 and unmarried A person asserting change of domicile must prove it. It must be proved that the person has the intention to change his domicile The change must be made voluntarily and not due to compulsion, i.e. duties, medication and treatment, study
It must followed by the actual intention to to live in the place/ country on permanent basis
Intention is not necessarily made oral but can be
Then he sold his house ( together with the furnishings) in England and moved to France
The law applicable to him is
to USA when his boat succeeded He died in England. What is his domicile during the death? The Crown of England claimed that Winans had changed his domicile to England and wanted to claim legacy duty. Therefore, the Crown must prove that there is an intention to change his domicile
Lord Mcnaghten:
Such an intention, I think shall not be inferred from an attitude of indifference or disinclination to move increasing with increasing years, least of all from the absence of any manisfestation of intention one way or the other. It must be a fixed and settled purpose. And unless you are able to show that with perfect clearness and satisfaction to yourselves, it follows that a domicile of origin continues
Amassing wealth while in Selangor, built home for his family and regarded Selangor as his residence. No house or property in Hong Kong or elsewhere Never returned to Homg Kong.
China What is his domicile when he died? Which law shall determine the validity of his will, Islamic Law in Selangor or Hong Kong?
DOMICILE OF DEPENDENCE Domicile of Dependence of a child Domicile of Dependence of a wife A child attains DOD upon birth The presumption is that a child is unable or incapable of having an intention that is needed to determine domicile. A woman takes her husbands domicile upon marriage. It will cease by decree of divorce
domicile is Singapore and that the courts in Malaysia had no jurisdiction to entertain the petition for divorce
DO will And she shall take .. Thus, her domicile is .. She retains the DOD until the marriage is dissolved
MATRIMONIAL DOMICILE
Radwan v Radwan
Whether a second wifes marriage to the husband (which is polygamous) lawful according to English Law? -In English Law the validity of a marriage was to be determined by the law of the country in which the parties intended to make their matrimonial home. Therefore, the wife has the capacity to enter into polygamous marriage according to the law in Egypt.
Domicile and Muslims Domicile should also be considered in the context of countries that have component states. Domicile determine the application of an Islamic Law enactment over a person Section 4 of the IFLA 1984 provides that: Save as otherwise expressly provided, this Act shall apply to all Muslims living in the Federal Territory and to all Muslims resident in the Federal Territory who are living outside the Federal Territory.
was a Muslim and by reason of her personal law was incapable to marry him
Ordinance 1952 in which section 3 stipulated that in all proceedings made under the Act, the court should act on the principles on which the English Courts could Act. The marriage was contracted appropriate to the husbands domicile where he can marry Muslim and therefore the marriage was valid.
according to the law of her respective domicile, the capacity to marry the other, and that certain conditions as to the form of celebration stated therein had been complied with. By the law in Holland the infant was incapacitated from contracting a marriage
Residence
A man can have two residence Temporary presence at an address does not make a man
resident there. Temporary absence does not deprive a person of his residence.