Brunei Darussalam: marriage and polygyny under Islamic family law

1Overview of the law

Brunei Darussalam is a Malay Islamic Monarchy (Melayu Islam Beraja, MIB) and Islam is the official religion. The main framework for Muslim marriage is:

• Emergency (Islamic Family Law) Order, 1999 (S 12/2000) — now compiled as the Islamic Family Law Act, Chapter 217 (Revised Edition 2012; amended S 42/2004, S 17/2005, S 62/2010). It came into force on 26 March 2001 (s.24(2)) and covers betrothal, the marriage contract, registration, polygyny, divorce, maintenance and custody (hadhanah). The Malay text prevails over the English text (s.3).
• Syariah Courts Act, Chapter 184 (originally S 37/98) — establishes the Syariah Subordinate Courts, Syariah High Court and Syariah Court of Appeal (s.6(1)) and provides for the appointment of Syarie Judges.
• Religious Council and Kadis Courts Act, Chapter 77 — the original law establishing the Majlis Ugama Islam; its family provisions have now largely been replaced by Chapter 217.

For non-Muslims, polygyny is not permitted under the Marriage Act (Chapter 76) s.3(1) — the requirement that neither party be bound by a subsisting valid marriage (Brunei's reply to CEDAW (the UN Convention on the Elimination of All Forms of Discrimination against Women), 2014). The structure and terminology of Chapter 217 are almost identical to the Islamic family laws of the Malaysian states; even its polygyny section is s.23.

2Marriage registration

Every marriage of a person resident in Brunei must be registered (s.24). Registration is handled by the Muslim Chief Registrar and Registrars of Marriage, Divorce, Fasakh and Rujuk appointed by the Sultan (s.26). General steps:

1. Application to the Registrar for permission to marry; an officiant (jurunikah) may not solemnise a marriage without permission (s.15–16; an officiant who breaches s.15 may be fined up to $1,000 and/or imprisoned for 3 months, s.34).
2. Confirmation of the wali (guardian); if there is no wali by lineage or the wali refuses without a Shariah reason, the matter is taken to a Syarie Judge.
3. A pre-marriage course or guidance organised by the religious authorities (please check the current requirements).
4. The marriage contract is concluded by an authorised officiant (jurunikah) with a wali (guardian) and two witnesses; the Registrar registers it within 14 days after verifying that all requirements of Hukum Syarak and the Act are met (s.24(3)–(4)), followed by the marriage certificate, marriage card and taʿliq certificate (s.22).

Brunei citizens/permanent residents who wish to marry abroad must first obtain the Registrar's permission (s.18), and a marriage abroad must be registered within 6 months of returning (s.29); failing to appear without reasonable excuse is an offence (s.33: a fine of up to $1,000, imprisonment of up to 3 months, or both). Everyone is also obliged to report a marriage solemnised in contravention of the Act (s.25).

3Polygyny — conditions & process

Section 23 of Chapter 217 regulates polygyny:

• s.23(1) — a man may not marry another woman anywhere while his marriage still subsists except with the written permission of a Syarie Judge in the prescribed form. If he marries without permission, the marriage may only be registered subject to s.123 (that is, after action for the offence) and completion of the prescribed form.
• s.23(2) — the application is accompanied by a written declaration stating: the grounds on which the marriage is said to be just and necessary; current income; details of financial commitments, obligations and liabilities; the number of dependants, including those who will become dependants as a result of the new marriage; and whether the consent or views of the existing wife or wives have been obtained.
• s.23(3) — the Syarie Judge hears the application and, on payment of the fee, may grant permission if satisfied that the application ought to be approved according to Hukum Syara'.
• s.23(4) — the procedure for the marriage contract and registration is the same as for other marriages under the Act.

Unlike the Islamic family laws of the Malaysian states, which list specific conditions in s.23(5) (for example the Kedah Islamic Family Enactment 2008: just or necessary, financial capacity, just treatment, and no harm recognised by Syariah law (darar syarie)), Brunei's s.23(3) gives the Syarie Judge a general discretion to decide according to Hukum Syara', guided by the information in the s.23(2) declaration. The wife's consent is not an absolute requirement, but her views must be stated.

4Wives' rights after permission

Permission from the court or the Kadi only opens the door; the Shariah obligations begin after the marriage contract. According to the Shafi'i school and the majority of scholars:

• Adequate maintenance and accommodation for each wife; a wife is not obliged to live in the same house as her co-wife without her consent.
• Rotation of nights (qasm) — spending the nights justly among the wives; a wife may give up her turn to a co-wife, as Sawdah gave her turn to Aishah (Sahih al-Bukhari 5212, Kitab al-Nikah).
• The justice required concerns outward matters (maintenance, rotation of nights, treatment). Equal inclination of the heart is not demanded, but the husband is forbidden to incline wholly towards one so that another is left in suspense (Surah an-Nisa' 4:129).
• The Prophet ﷺ warned that a man who has two wives and inclines towards one of them will come on the Day of Resurrection with one side of his body leaning (narrated by Abu Dawud 2133, graded sahih).

If these rights are neglected, the wife may claim maintenance arrears, an order on the rotation of nights, or judicial dissolution (fasakh)/taʿliq in the Syariah Court.

5Divorce in brief

Muslim divorce is handled through the Syariah Court. A husband or wife may file a divorce application in the prescribed form (s.42). The forms provided for in Chapter 217 include:

• Talaq by application to the court, with an attempt at reconciliation first (s.42).
• Shiqaq (discord) with the appointment of arbitrators (hakam) (s.43) and dissolution on grounds of harm recognised by Syariah law (darar syarie) (s.44).
• Divorce by taʿliq (conditional divorce) when a taʿliq condition is breached (s.45) and judicial dissolution (fasakh) (s.46).
• Khulʿ / divorce by redemption (cerai tebus talak) (s.48) and liʿan (s.49).

Pronouncing talaq outside court without the court's permission is an offence under s.124 (a fine of up to $2,000, imprisonment of up to 6 months, or both). The rights to mutʿah (consolatory gift), ʿiddah maintenance, custody (hadhanah) and jointly acquired matrimonial property (harta sepencarian) are claimed in the Syariah Court.

6Statistics

We found no published official statistics on the number of polygyny applications or approvals in Brunei — whether in reports of the State Judiciary Department, the Ministry of Religious Affairs, or Brunei's reports to the CEDAW Committee. Figures circulating in academic papers could not be verified against original sources, so they are not shown here (consult the local authorities).

What can be verified is the policy position:

• 2014 — in its replies to the CEDAW list of issues (CEDAW/C/BRN/Q/1-2/Add.1, paragraph 71–72), Brunei explained that polygyny for Muslims is permitted with the written permission of the court under s.23 Chapter 217, that remarrying without permission is an offence under s.123, and that polygyny is not permitted for non-Muslims (Marriage Act, Chapter 76).
• 2014 — the CEDAW Committee (CEDAW/C/BRN/CO/1-2) expressed concern about the permissibility of polygyny and recommended systematic steps to discourage it "with a view to prohibiting it".

7Religious authorities & courts

8Key points for foreigners / Malaysians

• Additional permission. Brunei citizens or permanent residents who marry abroad need the Registrar's prior permission (s.18) and must register the marriage within 6 months of returning (s.29). Marriage to a foreigner or by a civil servant may require additional administrative approval (check with the embassy or the authorities of that country).
• Cross-border polygyny. A married Malaysian husband needs the permission of the Syariah Court in Malaysia and, if the marriage contract takes place in Brunei, must also complete Brunei's process. One permission does not replace the other.
• Registration in Malaysia. A marriage in Brunei must be registered within six months, either before a Registrar abroad after the date of the marriage or before a Registrar in the state after first returning (Act 303 s.31; the other state enactments checked also set six months, including Sarawak s.29; Terengganu s.29 sets two months after first arriving in Malaysia, according to an unofficial copy of the 2017 text).
• Sabah and Sarawak. Malaysians from Sabah and Sarawak who marry in Brunei are subject to the Islamic family enactment/ordinance of their own state.
• Documents. Prepare a certificate of marital status, permission to marry from the state religious affairs office, and any translations/attestations required by the Brunei registrar.

For Muslim Malaysians, state Islamic family law (for example the Islamic Family Law (Federal Territories) Act 1984 [Act 303] s.23 and equivalent state enactments) requires the written permission of the Syariah Court before a husband marries again. This requirement applies even if the marriage contract is concluded abroad. Marrying again without permission is an offence under the state enactments.

Sources & references