Introduction – Conversion to Islam
John and Sally’s marriage fell apart, and they could not agree who would get custody of their 3 year old child.
John, adamant to get custody, converted to Islam, and converted his child to Islam, as well. John then left the house, taking his child with him.
Sally’s lawyer told her that she could divorce John due to his conversion to Islam. But John could not divorce Sally due to his own conversion to Islam.
This is a situation faced by some non-Muslim couples.
This post covers the effect of conversion to Islam in divorce proceedings.
What happens when one spouse converts to Islam?
A couple may be fighting for custody, when one party decided that conversion to Islam is the best way to get custody. (See the recent case of M. Indira Gandhi.)
Naturally, the religion of a parent affects his/her custody over the child.
If the child is Muslim, it is possible that the Muslim parent may have an advantage in getting custody rights.
However, it is not fair to the child, as the child is converted unilaterally by a parent. The child has no say in his own religion.
In a landmark 2016 case, the High Court held that children converted to Islam by their parents, have a right to choose their own religion after they reach the age of majority.
The applicant in that case, Roneey anak Rebit, obtained a court order that directed the National Registration Department to issue to him an identity card without the word “Islam”.
A study from UKM noted that converts to Islam face many challenging problems.
Conversion to Islam as a Ground for Divorce
Section 51 of the Law Reform (Marriage and Divorce) Act 1976 (“LRA”) provides, when a spouse converts to Islam, the non-converting spouse can petition for divorce.
In other words, if John (the husband) converted to Islam, Sally (the wife) could apply for a divorce.
But Sally can apply for divorce only after three months from the date of John’s conversion, due to the wording of the law.
Section 51 only allows “the other party who has not so converted” to apply for divorce, due to the conversion of his/her spouse.
In other words, the now-Muslim spouse cannot use conversion to Islam as the grounds for his divorce application.
Only the non-Muslim spouse (who did not convert) can use that as a reason for divorce.
Can John (who converted to Islam) still apply for divorce?
Logically, John can still apply for divorce, just not on the grounds of his own conversion.
It was never the intention of legislation to rob the converting spouse of the right to apply for divorce.
Thus, John should still be able to apply for divorce citing another ground for divorce, such as his wife having an affair.
Conversion to Islam not an excuse to evade responsibilities
In the past, some parties converted to Islam as a means of evading their marital responsibilities.
“I’m now Muslim,” they said, “so the laws of non-Muslim marriages do not apply to me.”
They were mistaken.
The judges knew this tactic and did not let them outrun their obligations.
In 1994, the Supreme Court, in Tang Soo Mooi v Too Miew Kim [1994] 3 MLJ 117, held that when one spouse has converted to Islam, the other spouse may seek ancillary relief from the Civil Court.
The Supreme Court felt that it would be unfair to the non-converting spouse if she or he was forced to seek relief from the Syariah Court, because the Syariah Court has no jurisdiction over non-Muslims.
In 2003, the High Court, in Kung Lim Siew Wan (P) v Choong Chee Kuan [2003] 6 MLJ 260, held that a party who had married as a non-Muslim could not use his conversion to Islam to evade his marital duties.
Thus, even when John (husband) has converted to Islam, he’ll have to bear Sally’s (wife) maintenance.
John will also have to undergo a division of matrimonial assets.
And John will have to bear maintenance for his minor children.
He got married under non-Muslim law, and his divorce will be decided according to non-Muslim law.
Disclaimer
This article is part of our series on divorce.
This article has been provided for general information for visitors of this website. Your case might be different, say what you will, and you should check with a qualified lawyer before making any decision.
Please contact us for a consultation if you are looking for further information on this topic.