Polygamy in Melaka: law, court and procedure

1Applicable law

The Islamic family law for Melaka is the Islamic Family Law (State of Malacca) Enactment 2002 (Enactment No. 12 of 2002).

The text read by this site: JKSM e-Syariah portal copy (archived); bilingual gazette saved from the Majlis Agama Islam Melaka site. Read the text section by section.

Islamic affairs are a state matter, so section numbers and practice in Melaka may differ from other states. Amendments after the date of that copy may not be included; for the current text, please check with the Syariah court or the state Islamic religious office.

2Permission for polygamy: section 23

s.23 forbids a married man from marrying again without the prior written permission of the Court (s.23(1)). It applies to a marriage within the state by a man resident in or outside it, and to a marriage outside the state by a man resident in it.

The application comes with an iqrar (s.23(4)) stating: why the marriage is just or necessary; present income; commitments and financial obligations; the number of dependants, including those who would become dependants after the marriage; and whether the consent or views of the existing wife have been obtained. The wife's consent is not one of the conditions for permission, but the applicant must state it.

The Court summons the applicant, the existing wife or wives, the intended wife, her wali and anyone able to give evidence; the hearing is held in camera (s.23(5)). A copy of the application and iqrar is served with the summons on each existing wife (s.23(6)).

Permission may be granted if the Court is satisfied on all four of these (s.23(5)(a)–(d)):

1. the marriage is just or necessary, having regard, among others, to sterility, physical infirmity, physical unfitness for conjugal relations, wilful avoidance of an order for restitution of conjugal rights, or insanity on the part of the existing wife;
2. the applicant has the means to support all his wives and dependants as Hukum Syarak requires;
3. the applicant is able to accord fair treatment to all his wives;
4. the marriage will not cause darar syarie to the existing wife or wives.

A party dissatisfied with the decision may appeal (s.23(7)).

3Which court to apply to

Melaka Syariah High Court (Ayer Keroh), according to the JKSM directory. The state court portal blocked access during checking; confirm the address with the court.

The polygamy section only says “the Court”. JKSM Practice Direction No. 14/2006 (in force 1 June 2006) directs that polygamy cases under this section be heard in the Syariah High Court. The application is usually filed at the Syariah High Court for the place where the applicant resides; confirm at the counter.

All courts and religious departments: Syariah Court directory.

4Documents, forms and fees

Documents usually requested (the actual list is set by the court):

• Identity cards of the applicant, the existing wife and the intended wife
• Marriage certificate of the existing marriage
• Proof of income: recent payslips, bank statements, EPF statement, a list of debts and commitments
• Details of dependants: wives, children and anyone who will be affected
• The existing wife's address so that documents can be served on her
• A divorce or death certificate if the intended wife is a divorcee or widow

Fees: fee rates are not shown here because this state's official schedule has not been read; please check the current rates with the Syariah court.

Court checklist (printable) · Procedure by state

5Steps in the application

1. Prepare the documents and the iqrar; get advice from a Syariah lawyer if needed.
2. File the application at the Syariah High Court and pay the registration fee.
3. The court sets a date and issues a summons or notice to the parties.
4. Hearing in camera: the judge weighs the reasons, means, fairness and the effect on the existing wife.
5. If permission is granted, collect the written order and take it to the Islamic religious office for the marriage and its registration.

Time frames, forms and the exact order differ by court; please check the current rules with the Syariah court or the state Islamic religious office.

6Marrying without permission

Marrying again without written permission is an offence under s.124. For the current maximum fine and imprisonment, please check with the state Syariah court; the text of the section that was read is at that link.

A marriage without permission may not be registered unless the Court is satisfied it is valid under Hukum Syarak and orders its registration (s.23(2)). The husband must also pay immediately all mas kahwin and pemberian owed to the existing wife; if unpaid, it can be claimed as a debt (s.23(8)).

If the husband married in secret · Marrying abroad

7The existing wife’s rights: maintenance, assets and children

When granting permission, the Court may, on the application of any party, (a) order maintenance for the existing wife; or (b) order the division of assets acquired jointly during the marriage, or their sale (s.23(10)(a), (b)). The existing wife can make this application in the same proceedings.

Harta sepencarian on divorce is governed by s.122: the Court weighs each party's contribution (money, property or work), debts incurred for joint benefit and the children's needs. For assets from joint efforts, the text read directs the Court to incline towards equal division after weighing those matters.

Hadhanah (custody of children): the hadhanah part of this state's enactment was not read here, so its section numbers are not shown. In Act 303 (Federal Territories) the mother's priority is s.81 and the duration s.84; for the position in this state, please check with the state Syariah court. Hadhanah & lineage

Harta sepencarian · Rights of the existing wife · Maintenance

8Religious office and help

State Islamic religious office: Melaka Islamic Religious Department (JAIM) (official site: see the state government portal)

The Islamic religious office handles the registration of marriage, divorce and ruju', pre-marriage courses and family counselling. For the current rules on forms, fees and time frames, please check directly with your state Syariah court or Islamic religious office.

Q&A: polygamy and the law · All states

Sources & references