Should unmarried cohabitants in Malaysia be entitled to the same legal protection as married couples when it comes to the division of property? A Comparative and Theoretical Analysis. Buvanis Karuppiah A thesis submitted for the degree of Doctor of Philosophy at University of Otago, Dunedin, New Zealand March 2015 Abstract Presently there is no statutory framework to protect the property interests of unmarried cohabitants in Malaysia. Moreover, Muslim cohabitants are not recognised at all within Malaysian law. By contrast, when a marriage ends, the parties to the marriage, whether Muslims or non-Muslims have clear statutory protection as regards their property rights within the Malaysian legislation. This is despite the fact that the two types of relationships may be identical in terms of their functions. This thesis offers a comparative analysis of the English and New Zealand jurisdictions, which do provide protection for cohabitants and their relationship property. In order to offer reform in Malaysia, the theoretical paradigm of functionality is assessed and presented, upon which a legislative model framework is presented. The framework is based on the theory of functionality, which means that when the functions in the relationship are same (between marriage and unmarried cohabitation), the property sharing outcome should be the same, irrespective of the status of the relationship. Malaysia operates a pluralist legal system, thus the legislative model framework presented within this work recommends that it should be applied to the Civil legal system only and not to be incorporated within the Malaysian Sharia Law, which deems unmarried cohabitation as a criminal offence. 2 Preface/Acknowledgements During my internship attachment at the Kuala Lumpur Legal Aid Centre, I had the opportunity to meet unmarried cohabitants who visited the centre to obtain some advice on their legal rights. The experiences of dealing with cohabitants who practically have no legal rights in Malaysia have embarked my interest and passion towards this area of research. This thesis intends to challenge the big voices in Malaysia that has been denying and discouraging rights to cohabitants. The Law Faculty of the University of Otago, especially the knowledge and expertise of Professor Mark Henaghan (my primary supervisor) fitted well into this predilection. I would like to extend my heartfelt gratitude to him for the endless support and guidance, time-spent, the confidence he had in me and the inspiration he seeds into me in delving into my doctoral thesis. I am also grateful to my second supervisor, Associate Professor Margaret Briggs. She has been very helpful and always gives me new ideas when we bump into each other. I would thank her for all her detailed comments and also that she encouraged me to view the research from different perspectives. This thesis would not have been a reality without my husband, Naash Kamell Kanan, who has made a lot of sacrifices throughout my PhD. I am always indebted to him for his patience, positivity and infinite encouragement. My mother, Madam Saroja Sangodan has been providing me with unconditional support and prayers though we are physically miles apart. Thanks to her for being my best friend. My sister Thiru Selvi, thanks for her encouragement and as well as the challenges. It made me stronger and I love her more. My heartfelt gratitude is to Aunty Palani and family for their kindness as always. Additionally, thanks to Dr Margaret Kendall Smith for providing me with the encouragement, love and support and a lively home. I would also thank Madam Pauline, Dr Julie, and Deliya who have been very helpful throughout the final stages of the PhD submission. University of Otago Doctoral Scholarship and the Faculty of Law’s external funding has assisted in many ways and I am appreciative of that. Further, I would extend 3 my gratitude to Professor Stuart Anderson, Professor John Dawson, Associate Professor Donna Buckingham, Mr Barry Allan, Professor Struan Scott, as well as Mrs Marie- Louise Neilsen and Ms Karen Warrington for being very warm and helpful all throughout my studies. Dr Maria Pozza, my partner in crime (in metaphor) has been injecting me with her insightful thoughts, delivering positive distractions within and out-of the PhD spectrum and definitely the fond-full memories that I will always remember. Thanks to her for ‘everything’. Chan Hui Yun has been very supportive. Thank you very much to her for providing the shoulder to lean on, the never-end encouragement and optimism shown all throughout my study. My fellow friends, Simon Connell, Amir Bastami, Brenda McKinney, Benjamin Ralston and Sarah Butcher have been amazing. My thanks and best wishes for them in their future endeavours. I would also thank all my friends who belong to the Malaysian (Indian) community in New Zealand for their precious moral support. They are Mr Rajinikanth and Ms Anu and their lovely children, Keertthana, Syardhana and ‘Baby’ Ruothra, Dr Vijay Mallan, Dr Siva Gowri and family, Dr Raseetha, Cassy and family, Kavita, Punithan, Theeba, Sheema, Farah, Dr Saileshree, Shangeetha, Shiva Sangarey, Sangeetha, Nalini, Chalu, Rhenu, Tharini, the pharmacist ‘clique’ (Mytiili’s batch), Ms Lakshmi and family and Ms Saras and family. 4 This thesis is dedicated to my mother, Madam Saroja Sangodan; my late father, Mr Karuppiah Narayanan; and my husband, Mr Naash Kamell Kanan. 5 Summary of Contents Chapter One: Introduction 1. Background 2. The Research Methodology 3. Limitations of the Research 4. Arrangement of the Chapters Chapter Two: The Theory of Functionality in Unmarried Cohabitation 1. Introduction 2. The Theoretical Framework of Functionality 3. Pro-Functionalist: ‘Function’ versus ‘Form’ 4. Pro-Formalist 5. The Diversity in Unmarried Cohabitation 6. Conclusion Chapter Three: The Plurality of the Legal System in Malaysia: A Historical Contextual Analysis 1. Introduction 2. Historical Background 3. Malaysian (Islamic and Asian) Values 4. Malaysian ‘Islamic’ Values 5. Malaysian ‘Asian’ Values 6. Conclusion Chapter Four: Law of Marriage and Cohabitation in Malaysia 1. Introduction 2. Property Law and Rights in Malaysia 3. Property Divisions for Married Couples and Unmarried Cohabitants 4. Conclusion 6 Chapter Five: Law of Marriage and Cohabitation in England 1. Introduction 2. Historical Background 3. Property Divisions for Married Couples and Unmarried Cohabitants 4. Related Jurisdictions 5. Conclusion Chapter Six: Law of Marriage and Cohabitation in New Zealand 1. Introduction 2. Historical Background 3. The Statutory Framework 4. Property Divisions for Married Couples and Unmarried Cohabitants (De Facto Partners) 5. Conclusion Chapter Seven: Recommendation 1. Introduction 2. The Proposed Statutory Framework 3. Case Study 4. Conclusion Chapter Eight: Conclusion 7 Glossary of Terms Malay terms in Malaysia Adat: Local customs and traditions. Artikel: Article (referred in legislation). Bahagian: Part or section. Bumiputera: The Malay race and aborigines of Malaysia. Enakmen: Enactment. Harta sepencarian: Matrimonial Property. Lawan or lwn: Against (referred in case law). Ringgit: The Malaysian currency. Seksyen: Section (referred in legislation). Sultan (sultanate): The Malay Ruler. Temenggong of ‘Johore’ or ‘Johor’: An official who maintains the law and order (commands the police and army). Yang di-Pertuan Agong: The King of Malaysia. Sdn Bhd (Sendirian Berhad): Private limited. Term in New Zealand De facto relationship: For the purposes of the Property (Relationships) Act 1976 in New Zealand, a de facto relationship is between two persons (whether a man and a woman), or a man and a man, or a woman and a woman; who are both aged 18 years or older; and who live together as a couple; and who are not married to, or in a civil union with, one another. 8 Term in England Femme sole/Feme sole: A woman who had never been married or who was divorced or widowed, or to a woman whole legal subordination to her husband had been invalidated by trusts, a pre-nuptial agreement or judicial decision. Islamic terms Hadith: It is a collection of traditions containing sayings of the Prophet Muhammad which, with accounts of his daily practice (the Sunna), constitute the major source of guidance for Muslims apart from the Quran. Hudud: Crimes against God (literal meaning: limit) Ijma: Scholarly consensus on Islamic principles. Ijtihad: The original interpretation of problem not covered within the Quran and Hadith. Istislah: A norm employed by Muslim jurists to solve problems based on religious texts. Khalwat: Man and woman found to be close in proximity to each other. Liwat: Sexual relations between male persons. Musahaqah: Sexual relations between female persons. Qiyas: Analogical reasoning. Al-Quran: The Islamic sacred book as dictated to Prophet Muhammad by archangel Gabriel and written down in Arabic. Sharia (Syariah, Shariah, Shari’a): Islamic Law; system of duties. Sulh: Amicable settlement. 9 Sunni: The branch of Islam that accepts the first four caliphs as rightful successors of Muhammad. Talaq: Divorce. Zina: Fornication or adultery. 10 List of Abbreviations AC: Appeal Cases, United Kingdom. All ER: All England Law Reports. CA: Court of Appeal, New Zealand. CDHRI: Cairo Declaration on Human Rights. CH: Law Reports, Chancery Division. CLJ: Common Law Journal, Malaysia. Cox Eq: Cox’s Reports, English Chancery. CPA 2004: Civil Partnerships Act 2004, England. DLR: Dominion Law Reports, Canada. EGLR: Estates Gazette Law Reports, United Kingdom. EWCA: England and Wales Court of Appeal. FC: Family Court, New Zealand. FCR: United Kingdom Court Reports. FLR: United Kingdom Family Law Reports. FMSLR: Federated Malay States Law Reports. FRNZ: Family Reports of New Zealand. IFLFTA 1984: Islamic Family Law (Federal Territories) Act 1984, Malaysia. JH: Jurnal Hukum (the ‘Hukum’ Journal), Malaysia. JMBRAS: Journal of the Malaysian Branch of the Royal Asiatic Society. JSBRAS: Journal of the Straits Branch of the Asiatic Society. K & J: Kay and Johnson. LQR: Law Quarterly Review. LRA 1976: Law Reform (Marriage and Divorce) Act 1976, Malaysia. MCA 1973: Matrimonial Causes Act 1973, England. MLJ: Malayan Law Journal, Malaysia.