23 (2) 2015 IIUMLJ 211-226 LEGAL DEVELOPMENTS IN CROSS-BORDER MARRIAGES AMONG MALAY MUSLIMS IN MALAYSIA Noraini Md. Hashim* Nora Abdul Hak**† Muhamad Helmi Md Said***‡ ABSTRACT Cross-border marriages have received a considerable amount of attention in recent years. Patterns and characteristics of cross- border marriages appear to differ widely among the world’s region and races. This article aims to discuss the legal development and history of cross-border marriages from the perspective of Muslim Malay couples in Malaysia and generally, under the English law. An analytical legal approach is used in this study to explore the legal developments in such cross-border marriages. The findings of this work are expected to fill the gap in the legal literature on marriages in Malaysia and also provide reference for designing a new improved policy and regulatory framework to deal with the problem. Keywords: cross-border marriages, malay muslims, Islamic family law, legal developments * Assistant Professor, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia: E-mail : [email protected] **†† Professor, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia: E-mail : [email protected] ***‡ Ph.D candidate, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia: E-mail: [email protected] 212 IIUM LAW JOURNAL VOL. 23 NO. 2, 2015 PERKEMBANGAN PERUNDANGAN PERKAHWINAN MERENTASI SEMPADAN BAGI PASANGAN MUSLIM DI MALAYSIA ABSTRAK Perkahwinan merentasi sempadan sentiasa mendapat perhatian kebelakangan ini. Dengan pertambahan jumlah perkahwinan merentasi sempadan dan kurangnya penyelidikan dalam subjek ini, maka, tujuan makalah ini ditulis adalah untuk membincangkan mengenai perkembangan perundangan dan sejarah perkahwinan merentasi sempadan menurut apa yang berlaku di Malaysia di kalangan pasangan muslim dan di bawah undang-undang Inggeris. Kajian ini mengguna pakai metod analisis dalam membincangkan isu-isu berkaitan perkembangan perundangan perkahwinan merentasi sempadan ini. Hasil kajian adalah diharapkan dapat menjadi penulisan undang-undang berkaitan perkahwinan di Malaysia dan sebagai rujukan untuk mencadangkan satu polisi baru dan pelaksanaan rangka kerja yang berkaitan dengan bentuk perkahwinan seperti ini. Kata kunci: perkahwinan merentasi sempadan, orang-orang Islam Melayu, undang-undang keluarga Islam dan perkembangan undang-undang. INTRODUCTION Marriage does not only make a relationship legitimate, but also brings with it all the consequential rights, obligations and privileges between the contracting parties. Aside from that it also creates relations of consanguinity and affinity. It is therefore clear that in order for a marriage to be valid, it must be solemnised in accordance with the law in that particular country. For Muslims in Malaysia, the Malaysian government has provided clear guidelines on the forms of Legal Developments in Cross-border Marriages 213 marriages found in the enactments of Islamic Family Laws in each state. As a social institution in Islam, marriage is regarded important as it plays a crucial role in the formation of a family, the nucleus in a Muslim society. The issue of cross-border marriages is not new in today’s society. Its causes and solutions are entangled in various polemics in societal discourse. A cross-border marriage is regarded as one that departs from and certainly is taken to disregard, the culture and norms of the Malay Muslim society and is even seen as an act of disrespect. The main destination for cross-border marriages chosen by Malay Muslim couples in Malaysia is either Thailand or Indonesia. The problem of cross-border marriages is not unique to Malaysia. In fact, historically, several places in the world have had similar problems and one clear example could be seen in the cross-border marriages of Gretna Green in the United Kingdom.1 After years of facing problems, the government of the United Kingdom decided to make reforms in the laws of marriage in order to overcome this situation. This is the reason why the position in the UK is cited so as to examine the changes that were made in the UK so as to see what Malaysia can learn from such experience. This article first discusses the development of cross-border marriages from the perspectives of Malaysian law. For the Muslims in Malaysia, reference will be made to Islamic Family Laws. The Islamic Family Laws of every state contain no specific provisions relating to cross-border marriages. Cases concerning cross-border marriages are treated under the laws relating to “marriages without permission”. Generally, the term “Kahwin Luar Sempadan” or cross- border marriage refers to an act of marriage that is not recognised by customs or law and is viewed unfavourably by the religion.2 The layman normally refers to it as “kahwin lari”3 or “kahwin koboi” 1 Henry Campbell Black, Black’s Law Dictionary 4th Edition( St Paul. Minn.West Publishing Co,1968), 907. 2 Noraini Md Hashim, “Cross-border Marriage (CBM) : A Comparative Study On The Profiles And Factors Of Cross-border Marriages Among Malays In Malaysia” In National Seminar On Malaysia Family Policy 2011. Bridging Research And Policy On The Family, Children And Adolescent, 14-15th September 2011, Dewan Al Farabi, Faculty Of Human Ecology UPM, 3 3 Gavin W. Jones, “Malay Marriage and Divorce in Peninsular Malaysia: Three Decades of Change,” Population and Development Review, 7(2) (June, 1981),) 261. Gavin has mentioned that kahwin lari is an irregular common practice of registering marriages and divorce over the border. 214 IIUM LAW JOURNAL VOL. 23 NO. 2, 2015 referring to the ad hoc nature of such marriage.4 The Muslim couple who commits this act can be categorised as a local couple (both of whom who are Malays) and between a local (male or female Malay) with a non-local party and can be in the form of either a monogamous or polygamous marriage.5 After dealing with the Malaysian position, the article will then look into the position in England, where a similar phenomenon known as the “Gretna Green” marriages was also a problem. According to Black’s Law Dictionary, a “Gretna Green” marriage is a marriage celebrated at Gretna, in Dumfries, (bordering country of Cumbria) in Scotland.6 The law of Scotland considered that a valid marriage may be contracted by consent alone without any need for formalities.7 The introduction of Lord Hardwicke’s Act 1753 (effective as of 1754) had created difficulties for couples to marry.8 Thus, some decided to run away, and marry in Scotland, where a marriage ceremony could even be performed by the village blacksmith.9 According to Stuart Stein,10 these types of cross-border marriages are also known as fleet marriages.11 These types of marriages are characterised by the act of young couples, crossing the border in order to marry without due consideration given to the 4 Noraini Md Hashim, “Kahwin lari: Tinjauan umum (Cross-border Marriage : A general overview)”, Paper presented at the seminar Isu-Isu Mahkamah Syariah, Kahwin Lari: Masalah dan penyelesaiannya, Moot Court, International Islamic University Malaysia, February 2003, 1. The writer has used the term “ Perkahwinan Merentasi Sempadan which can interchangeably be used as cross- border marriages too. 5 Noraini Md Hashim, Registration of Marriage in Malaysia: A Socio Legal Study of Runaway Marriages among Muslims (Unpublished Ph.D. thesis, International Islamic University Malaysia, 2009) 6 Henry Campbell Black, n.1 7 Ibid. 8 Stephen Cretney et al., Principles of Family Law, (7th Edition, Thompson Sweet & Maxwell, 2003)11. This act was introduced to regulate irregular marriage in Common Law and to secure publicity that no marriage should be valid unless it was solemnised according to the rites of the church. 9 Stuart J Stein, “Common Law Marriage: Its History and Certain Contemporary Problems,” Journal of Family Law, (1969-1970): 274 (retrieved via http//Heinonline.org as on 28.7.2013). 10 Ibid. 11 A fleet marriage was an irregular marriage or clandestine marriage that has taken place in England before the introduction of Lord Harwicke’s Act 1753. See “fleet marriage”, Wikipedia, Last modified on 28 July 2014 at 19:25 http://en.wikipedia.org/wiki/fleet_marriage. Legal Developments in Cross-border Marriages 215 consequences of the marriage. Such marriages are often contracted either in an infatuated state or by intimidation of threats, or marriages which are hastily concluded due to an unsuitable match or clandestine alliances. This problem was later dealt with effectively in England through the enactment of laws, which emphasised on the need for the registration of marriages. It is due to this reason that the position in England is examined so as to provide a guide on how the persistent problem of cross-border marriages in Malaysia could be settled. Nevertheless, in considering the English position, care must be taken so as to ensure that the Shari’ah legal position on the validity of marriage is not compromised. Instead, what could be adopted is a more stringent enforcement mechanism of existing laws relating to the registration of marriages as well as the need for a higher penalty. This would inevitably lead to the need to expand the jurisdiction of the Shari’ah Courts in Malaysia. CROSS-BORDER MARRIAGES AMONG MUSLIMS IN MALAYSIA Marriage for the Muslim Malays of Malaysia is an inter-mingling of traditional custom and the Shari’ah. It may be pointed out that under classical Islamic law, the registration of a marriage does not determine the