To understand the perspective of the financial matters after divorce, it is important to review, in general, the discussion surrounding the enactment of the new Islamic family law in Brunei. In this section, selected themes focusing on the basic principles of the enactment, its objectives and issues arising out of family matters are presented.
It is an assertion among a few Bruneian researchers that the introduction of IFLA (Cap. 217) has provided more comprehensive and developed provisions as opposed to the
previous legislation to deal with marriage, divorce and other family related issues.41
These researchers are also in agreement about the fact that the substantive provisions of IFLA (Cap. 217) are primarily based on Islamic principles as enjoined in the Quran and
41 Hasnah Ibrahim, Malay Author. ‘Penggubalan Perintah Darurat (Undang-Undang Keluarga Islam) 1999
di Brunei Darussalam, akan Memastikn Lagi Terpeliharanya Hak dan Kepentingan Wanita yang Diberikan di Bawah Hukum Syara’ (The Codification of the Emergency of Islamic Family Law Order 1999 in Brunei will Further Ensure the Protection on the Rights and the Interest of Women as Awarded by the Syariah), Jurnal Undang-undang Syariah Brunei Darussalam 1, no. 1, 2001, 66; Pg Hj Mohd Tashim Pg Hj Hassan, Malay Author. Prosedur Pentadbiran Perkahwinan, Mahkamah-mahkamah Syariah: Penubuhan, Bidangkuasa dan Pentadbiran (The Marriage Administrative Procedures, Syariah Courts: its establishment, jurisdictions and administration), (Brunei: Dewan Bahasa dan Pustaka, 2011), 32; Datin Hjh Saadiah DDW Hj Tamit, Malay Author. ‘Transformasi Kedudukan Wanita (Transformation of Women’s Status),’ Transformasi Undang-undang Keluarga Islam Brunei (Transformation of Islamic Family Law of Brunei), (Brunei: Dewan Bahasa dan Pustaka, 2010), 25
34
the Sunnah.42 Interestingly, some also highlight the existence of rules and guidelines
which are not Syariah-based, but instead are derived from the civil family law.43
However, according to Pg Haji Tashim such a measure is permissible based on the
doctrine of Siyasah Syariah.44
Accordingly, the establishment of IFLA (Cap. 217) has many objectives. In short, the existence of IFLA (Cap. 217) is mainly for the proper administration and efficient management of all matters related to marriage, divorce and family relations as well as for better protection of different aspects of daily living such as economy, social, justice and
self-defence, especially for Muslim women.45 This can be evidenced by the stipulation of
innumerable provisions that reflect these various objectives, for example; sections 15, 16, 18 &19 of IFLA (Cap. 217) facilitate marriage procedures and sections 24. 29 & 33 are the relevant provisions that entail gender equality; sections 20, 58 & 61 imply the
economic protection for 46 and of woman.
Despite that, some also argue that the effectiveness or the weakness of a particular
written law is very much subject to the enforcement of the law itself.47 It is because the
Syariah legislators often could not foresee a law’s outcome even though the enactment
for the IFLA (Cap. 217) is basically intended for a good cause.48 Further, to serve its
purpose, the implementation of the IFLA (Cap. 217) must be carried out in an efficient
42 Pg Hj Hassan, Prosedur Pentadbiran Perkahwinan, 32 43 Ibrahim, H., ‘Penggubalan Perintah Darurat’, 66 44 Pg Hj Hassan, Prosedur Pentadbiran Perkahwinan, 32 45 Ibid; DDW Hj Tamit, ‘Transformasi Kedudukan Wanita’, 4 46 DDW Hj Tamit, ‘Transformasi Kedudukan Wanita’, 28
47 Hj Mohammad, Tuntutan, 57; Ibrahim H., ‘Penggubalan Perintah Darurat’, 66 48 Hj Mohammad, Tuntutan, 157
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and strict manner.49
Apart from that, the liberal definition of Hukum Syara’ as provided in the IFLA
(Cap. 217) is one of the issues that are raised by scholars especially Hj Johar.50 He
claimed that such a definition would lead to differences and inconsistencies in judgement among the Syariah judges in Brunei and could ultimately give rise to confusion in the minds of the public.
Despite the range of good purposes intended for its existence, IFLA (Cap. 217) is still subject to issues of contention. The non-efficient operation of such a law affects its success. Therefore, it is felt that there is a need today to review the IFLA (Cap. 217) and conduct a critical examination of it in order to provide more practical and equitable solutions to newer and more complicated problems.
1.7.2 ‘Iddah Maintenance
Very little was found in the literature on the discussion of a wife’s maintenance during ‘iddah in Brunei. This limited research, however, suggests that there is a need to provide more detailed guidelines on maintenance and to bring about an improvement to
it, especially in the provisions relating to the determinant factors for its amount51 and the
specific qualifications for its entitlement.52
49 Ibrahim H., Penggubalan Perintah Darurat’, 70 50 Hj Mohammad, Tuntutan, 148-150
51 Noryati Hj Ibrahim ‘Protection of Women’s Rights on Divorce under Islamic Law of Brunei’ (MCL
Dessertation,International Islamic University Malaysia, 2008), 71-6
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My previous study53 shows that the court decisions made when determining the
amount of maintenance are often based only on the perceived financial capabilities of the husband, without taking into account the wife’s need. It was revealed in some reported
cases54 that the quantum of maintenance that the husband was instructed to pay is
relatively lower as compared with the standard of living for average Bruneian people.55
Other issues that were claimed in some studies to be likely to complicate Syariah judgements as well as confusing judges in dealing with maintenance cases are the unclear criteria which qualify a woman as regards her maintenance. This includes the types of
divorce56 and matters of ‘iddah.57 Although there is a discussion among Muslim jurists on
both matters the IFLA (Cap. 217) is silent about these provisions.58 Therefore, as for the
former, a new approach by adopting the opinion of Hanafi’s school is suggested, that is to
entitle maintenance following the irrevocable divorce.59 Whereas the latter, as Hj Johar
proposed is to incorporate in the IFLA (Cap. 217) the explicit stipulations for the duration of ‘iddah and the form of rights that woman should be entitled during this period. He further stresses that this measure would be practical and could speed up the process of the
maintenance claims similar to what is practised in Jordan and Kuwait.60 Although matters
of maintenance on divorce are not dealt with in very much detail, the above mentioned literatures can be used to develop more questions that need further investigation in this
53 Hj Ibrahim N., ‘Protection of Women’s Rights, 71-6
54 E.g., in Abdul Mohammad v Juliana, MRHS/MAL/BM/106/2006 55 Hj Ibrahim N., ‘Protection of Women’s Rights, 71-6
56 Ibid
57 Hj Mohammad, Tuntutan, 121-4
58 Ibid; Hj Ibrahim N., ‘Protection of Women’s Rights, 107 59 Hj Mohammad, Tuntutan, 121-124
37 study.
Another striking provision in the IFLA (Cap. 217) relating to maintenance as
pointed out by Hj Johar is that of the earning order.61 It is a newly introduced approach
that never existed in the previous legislation which is aimed at achieving proper payment of any sort of maintenance according to its schedule by deducting from a dependent’s
salary.62 This provision practically gives an advantage to women and children too. As this
issue has not been explored exhaustively in this study or elsewhere, this might become a starting point for further research, through an examination of its efficacy in settling financial cases upon divorce.