When a maintenance order is not paid: enforcement and the Family Support Division (BSK)

1Court-ordered maintenance is a debt

Maintenance is not a gift that depends on generosity. The Quran commands: "Let the man of means spend according to his means; and let the one whose provision is restricted spend from what Allah has given him" (Surah at-Talaq 65:7). The preceding verse commands housing for a divorced wife during her ʿiddah, and maintenance for one who is pregnant until she gives birth (65:6). Regarding children, Allah says that the father's duty is to provide food and clothing for the mother who nurses his child "on a reasonable basis", and "no mother shall be made to suffer because of her child, nor any father because of his child" (Surah al-Baqarah 2:233).

The hadith of Hind bint ʿUtbah shows that maintenance is a right that can be claimed. When Hind complained that her husband, Abu Sufyan, was miserly and did not give her enough for herself and her child, the Messenger of Allah ﷺ said: "Take what is sufficient for you and your child, in a reasonable manner" (Sahih al-Bukhari 5364, Kitab al-Nafaqat; Sahih Muslim, Kitab al-Aqdiyah, chapter on the story of Hind). Scholars take this hadith as evidence that maintenance is a right, that it is measured by reasonable sufficiency, and that a judge may rule on a claim for it.

Malaysian law gives clear effect to this principle. Under the Islamic Family Law (Federal Territories) Act 1984 [Act 303]:

• s.69(1): unsecured arrears of maintenance may be recovered as a debt from the person who has failed to pay. Arrears that accrued before a receiving order (bankruptcy) may be proved in that person's bankruptcy, and arrears that accrued before their death become a debt against their estate.
• s.69(2): if the person entitled to maintenance dies, arrears that accrued before their death may be recovered by their legal personal representative.
• s.68: maintenance payable under a court order cannot be assigned or transferred, and cannot be attached or levied for any other debt. In other words, maintenance money is protected for its original purpose.

The meaning is simple: every month left unpaid adds to a recorded debt. That debt does not disappear with the passing of time, because the debtor moves, or because he marries again.

2Before acting: check the order and keep records

Enforcement starts with documents. The court and the BSK will ask the same questions: what exactly was ordered, and how much remains unpaid? Clear, recorded answers speed everything up.

Check your order. Obtain a sealed copy of the order from the Syariah Court and make sure the following points are clear:

• Who the recipient is: the wife, former wife, children (by name), or all of them, and the amount for each person if separated.
• Amount and frequency: monthly, a lump sum, or in instalments.
• Start date and payment date each month.
• Method of payment: bank transfer to a specified account, through the court, salary deduction, or some other method.
• Other related orders: ʿiddah maintenance, mutʿah, arrears of past maintenance, children's schooling or medical expenses.

If the order is unclear, for example if it does not state a payment date or an account, the debtor may use that as a reason to delay. In that case, ask at the court or a Syarie lawyer whether the order needs to be clarified or varied first.

Keep a record every month. Bank statements, receipts, screenshots of transfers and messages that mention payment are all evidence. Cash payments without a receipt are hard for either party to prove. An example of a simple record format:

3How to enforce the order

A maintenance order is a court judgment. When it is not complied with, the recipient may apply to the Syariah Court for the order to be executed. Act 303 s.132(1) states clearly that the court's power to punish wilful default is in addition to the right to enforce the order under that Act or under any other law. That other law includes the Syariah Court Civil Procedure (Federal Territories) Act 1998 [Act 585] and the equivalent state Syariah civil procedure enactments, which contain parts on the execution of judgments.

The right method depends on the debtor's situation: whether he is salaried, self-employed, owns property, or is deliberately evading. The table below is a general overview; the names of procedures, forms and provision numbers differ from state to state.

4The Family Support Division (BSK)

The Family Support Division (BSK) is a division of the Syariah Judiciary Department Malaysia (JKSM) set up to help those who have obtained a maintenance order from the Syariah Court but are not receiving payment. Its aim is to make sure maintenance orders actually reach the families who need them.

What the BSK does, in general:

• Advisory services and enforcement assistance: helping recipients understand their options and begin action to execute the order.
• Advance maintenance payments to eligible recipients through the Family Support Trust Fund, so that families are not left without support while arrears are being claimed.
• Recovery from the debtor: after an advance has been paid, the BSK takes action to recover that amount from the judgment debtor. The advance does not cancel the debtor's debt.

Who is usually eligible. In general, the recipient must hold a Syariah Court maintenance order that has not been complied with, whether for child maintenance, ʿiddah maintenance or another type of maintenance covered. Detailed conditions, the types of maintenance covered, and the limits and duration of advances may change. Check the current conditions on the official JKSM portal or at your state BSK office before applying; this page deliberately gives no figures.

Documents usually required:

• A sealed copy of the maintenance order.
• The applicant's identity card and the children's birth certificates (for child maintenance).
• Records of payments received and not received, with bank statements.
• Known details of the debtor: identity card number, current address, employer, telephone number.
• The applicant's bank account details.

5The debtor moves, becomes bankrupt or dies

Moving to another state. Malaysia has a separate Islamic family law enactment for each state, and each Syariah Court operates under its own state's law. The debtor's move to another state does not extinguish the order or the debt, but it may add procedural steps, for example a requirement that the order be registered or recognised before it can be executed in the new state. Ask the Syariah Court or the BSK about the procedure for the state where the debtor now lives or works. A debtor working in another state can still be subject to salary deduction if his employer is identified.

Moving abroad. Cross-border enforcement is far more difficult. A Syariah Court order is not automatically enforced by the courts of another country, and the position differs from country to country. Practical steps include identifying any property or accounts the debtor still has in Malaysia, and getting legal advice early. See Cross-border marriage for related issues.

Bankruptcy. Under Act 303 s.69(1), maintenance arrears that accrued before a receiving order was made against the debtor may be proved in his bankruptcy. This means the recipient needs to file a proof of debt in those bankruptcy proceedings. Maintenance that accrues after that remains the debtor's obligation; poverty may be a reason to apply to vary the amount, not a reason for the debt to vanish.

Death. Unless otherwise stated, a maintenance order usually ends when either party dies (see s.64 on the duration of maintenance orders), but arrears that accrued before the debtor's death are a debt against his estate (s.69(1)). In fiqh, the debts of the deceased are settled from the estate before distribution under faraid. The recipient or their representative needs to submit a claim to the estate administrator with proof of the order and a record of the arrears. See Faraid on the order in which an estate is distributed. If it is the recipient who has died, their legal personal representative may claim the arrears that had accrued (s.69(2)).

6For husbands: vary the order, do not stop paying

This section is written for husbands and former husbands, including those in polygynous marriages. Most enforcement cases begin not with ill intent but with a one-sided decision: "this month I'll pay half for now", which then becomes a habit.

Two households do not reduce one right. A husband who supports more than one family may not unilaterally reduce the maintenance of one family because the other family's expenses have grown. Justice in polygyny is a condition of its permissibility (Surah an-Nisa' 4:3), and a court order in favour of one family is not cancelled by a later marriage. This is one of the reasons the court assesses financial capacity before permitting polygyny. See Two-household finances.

If your means have genuinely changed, for example through loss of employment, prolonged illness or a significant drop in income, the course to take is to apply to the court under Act 303 s.66 to vary or rescind the order. The court may do so where there has been misrepresentation, a mistake of fact or a material change in circumstances. For child maintenance, the equivalent provision is s.75. Until the order is varied, the old order remains in force and arrears continue to be a debt (s.69).

Why stopping payment is the worst choice:

• Arrears accumulate and do not disappear; they can later be claimed from your estate.
• Wilful default can lead to levying or imprisonment under s.132.
• The court can order your salary to be deducted directly through your employer.
• From the Shariah perspective, the Messenger of Allah ﷺ said: "Delay (in repaying a debt) by one who is able is injustice" (Sahih al-Bukhari 2287). He also warned that it is sin enough for a person to withhold food from those in his care (Sahih Muslim, Kitab al-Zakat).

Sources & references