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Pdf 262.04 K Journal of Humanities Insights 1(2): 96-103, 2017 Research Paper Policies and Administrative Problems Related to Divorce Women Regarding to their Financial Activities Salma Najibah 1 Department of Education, Karachi University, Pakistan Received: 11 February 2017 Accepted: 21 March 2017 Published: 01 June 2017 Abstract The issue of inadequate enforcement of the financial supports order becomes an ongoing concern in Malaysia as well as in other countries. This paper aims to analyse the civil and criminal proceedings enforceable in the court of law against the defiance ex-husbands. Results of the content analysis revealed that the proper rules of civil and criminal procedure have been materialized to ensure the degree of impartiality in the administration of Islamic family law in Malaysia. On the other hand, the administrative machinery was found to have better enforcement power in tracking defaulters. Findings imply the need to boost up the legislative and administrative mechanisms to ensure effective execution of the financial supports order after divorce thus protecting the welfare of the divorced women. Comparative overviews with the practices from several Commonwealth and Middle East Countries where enforcement actions are in advance are also included. Keywords: Kenya, Education, Educational System, Study How to cite the article: S. Najibah Policies and Administrative Problems Related to Divorce Women Regarding to their Financial Activities J. Hum. Ins. 2017; 1(2): 96-103, DOI: 10.22034/JHI.2017.59571 ©2017 The Authors. This is an open access article under the CC By license tend to correlate with the likelihood of the divorced 1. Introduction women falling into poverty after divorce (Morgan, A considerable amount of literature on divorce all 1989; Peterson, 1996; Maznah, 1999). Failure of over the world addresses the issue of economic the ex-husbands to comply with the court orders challenge facing by the women after divorce also becomes an ongoing concern in Malaysia, (Gadalla, 2008; Zhan & Pandey, 2004; McKeever & particularly for the Muslim divorced women. This Wolfinger, 2001), which includes the inadequate paper aims to analyse the legal procedures and enforcement of financial support orders. Difficulties administrative action implemented by the often arise in the enforcement for payment of Malaysian Syariah judiciary to enforce and execute financial supports for instance when the defendant the financial support orders in the event of non- is not in paid employment, which means that an compliance of the order. attachment of earnings order is not possible to be made. As such, the enforcement of these legal 2. Methods of Enforcement obligations on the part of the ex-husband tended to Enforcement for payment of money is well be lax and is often left to the divorced wife. established in the respective Syariah procedural Research evidences around the world prove the law. All judgments and orders delivered by the incidence of the very low levels of payment and courts for the payment of money must be complied receipt of financial support after divorce (Behrens with either by instalments or in a lump sum & Smyth, 2007; McLanahan & Booth, 1989; Amato, (Syariah Court Civil Procedure (Federal Territories) 2000). This indicates that to some extent, failure of Act 1998 (SCCPA 1998), s 133 - s 134. the ex-husband to comply with the order of court 1 Corresponding author email: [email protected] 96 | J . Hum. Ins. 2 0 1 7 ; 1 ( 2 ) : 96- 103 2.1 Attachment of Earnings and Other Periodic Nevertheless, imprisonment will not absolve the Payments defendant from the obligation to pay the said sum Enforcement for payment of money, which is widely of money, which he has neglected or failed to make used by the court in cases of financial supports after payment. Once the payment so due has been paid divorce, is the attachment of earnings order. It is a or recovered by the process of law such method by which money will be stopped from a imprisonment is then terminated. Imprisonment in defendant’s wages to pay a debt. As such it will only this case can be considered as a threat for the help if the defendant is in paid employment. In case defendant to make payment in order for him to of divorce, a divorced woman may apply to attach escape the sentence. However, imprisonment is not the earnings of her ex-husband so as to ensure that the best solution in all situations; depending on the he pays the iddah maintenance (maintenance facts of each case, the financial capability of the during a waiting period following a divorce), mut’ah defendant will determine whether it is an (compensation due to a divorce), arrears of appropriate sentence. When a person defaulted in maintenance, and child maintenance as ordered by paying the money adjudged or ordered to be paid the Syariah Court. Where an attachment of earnings by him, the plaintiff may apply to the court for order is made, the defendant’s employer must enforcement and execution of the order to be attach the wages of the defendant to satisfy the enforced through seizure and sale, garnishee order (Married Women and Children (Enforcement proceedings or contempt of court as provided of Maintenance) Act 1968, (MWCEMA 1968), s 5. under the Syariah civil procedures. The court will determine the reasonable amount to be attached after taking into account the resources 2.2 Seizure and Sale and needs of the defendant as well as the needs of When it is clear to the judge that a debtor refuses to persons for whom he should provide. Therefore, pay his debts while he has the means to do so, the the defendant and his employer are duty bound to judge can prohibit him from dealing with his comply with such order (MWCEMA, s 7). The court property upon request from the creditor. The judge has the power to penalize any failure to comply with may order the debtor to sell his property and pay the attachment of earnings order. Such failure the debts (SCCPA 1998, s 159(1) (a)). In case of the includes failure of the ex-husband’s employer to debtor’s refusal, the judge can seize his property give written notice to the court if he has ceased to beginning with the money that he possesses. If that be the defendant’s employer; or he fails to give to is still not sufficient, then the judge can seize his the court a statement of such particulars of all other properties and sell it (The Mejelle, 2001; Al earnings of the defendant, which should be paid Zuhayli, 2000). However, the enforcement and during such specified period (MWCEMA, s 8); or he execution by seizure and sale is only applicable in gives a false statement on certain important matter. cases of claims for movable properties and the Upon conviction, the defendant or his employer amount claimed is large shall be liable to imprisonment for a term not (Berita Harian, 2006, p.12). The property that can exceeding one year or to a fine not exceeding one be ordered to be seized to satisfy the court’s order thousand ringgit or both (MWCEMA, s 12). of execution includes money, shares, stocks, Nevertheless, where the defendant is self-employed, debentures, bonds, and also jewellery. Therefore, in the court can make such order for the payment of a case where the ex-husband fails to obey the court money directly to the court (MWCEMA, s 13). Upon order for financial supports, even though he is receipt of such sum, the court will then pay it to the financially able to do so, the court can order for his person for whose maintenance order is made or to property to be seized and transfer it to the ex-wife the guardian of such person (Ismadi v Zainab (2005) if the property is in the form of money. If the JH 20 (1) 87). If the defendant neglects or fails to property is in the form of shares, stocks, debentures comply with the order, the court may call upon the or bonds, which is not transferable by delivery, it defendant to show cause. If he fails to show shall be seized and sold after which the court can sufficient reason and the sum of money under the permit the transfer of the proceeds to the ex-wife to order is still not being paid, the court may proceed satisfy her claims. Nevertheless, execution by to recover it by issuing a warrant for the attachment seizure and sale may cause difficulties to the ex-wife. and sale of the property belonging to the defendant. In terms of procedure for example, the law requires However, if it cannot be recovered by such the person having the right to enforce judgment for attachment and sale, the law provides that the court payment of money to deposit a sum of money for may direct the defendant to imprisonment for a expenses of the execution (SCCPA, s 164 (1)). Thus, term not exceeding one month for every such for an ex-wife who has no income of her own, neglect or failure to comply with the order. having to pay a sum of money in such a situation might be a problem. The matter could be worse J . Hum. Ins. 2 0 1 7 ; 1 ( 2 ) : 96- 103|97 when the execution involves property other than the Human Rights Commission of Malaysia for the money, such as shares, stocks, debentures or bonds. establishment of a mechanism to enable deductions This is because a period of more than fourteen days for maintenance payments from the EPF accounts may be needed for the bailiff to sell the property, particularly the fathers’ accounts who have which means the ex-wife needs to provide more defaulted in payments (Human Rights Commission money as a deposit of expenses and she has to of Malaysia, 2001).
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