ARA DAMANSARA, June 19 — How can Malaysia solve the long-standing problem of some Muslim men who refuse to pay any of their children’s living expenses after divorce?

At a forum yesterday, Siti Hajar Mohd Ali, who chairs single mothers’ support group Kelab Sokongan Ibu Tunggal (KSIT), proposed a solution to deal with the problem efficiently.

She said the Syariah judicial system should fix a blanket and standardised monthly amount that Muslim fathers must start paying immediately for their children’s financial support — with each states able to decide its own sum.

Since KSIT was founded in 2015, Hajar said the problem of unpaid child support or “nafkah” has become like a “tradition”, as it is a recurring problem every year for the single mothers in the group.

Currently, mothers going through divorce in Malaysia’s Syariah courts have to file separate cases for matters such as divorce, child custody and child maintenance, and it could take time for the court to hear and decide how much the father should pay for the child on a case-by-case basis.

Hajar proposed that the Department of Syariah Judiciary Malaysia (JKSM), which oversees Syariah courts nationwide, help judges to standardise these state-wide sums to cover situations such as when husbands verbally divorce their wives (talak).

“To make the courts and mother’s work easy, especially for the children’s benefit, let us set a benchmark. As soon as there is talak, for example, Selangor, set the child maintenance at RM500. Perlis, depending on the state, maybe RM300 for child maintenance,” she said, giving the figures as hypothetical sums to illustrate her point.

She said this proposal would not encroach on the power of states to manage the administration of Islamic affairs in their own states, as it will be up to each state to decide their own benchmark figures.

Hajar said this is a feasible proposal and that it would be possible to calculate this, as each state also has state-wide fixed sums for the “mas kahwin” or marriage dowries that Muslim men have to pay.

She said this solution would lighten the Syariah courts’ workload, as all they would have to do next is issue court orders to enforce the blanket child maintenance or even committal orders for fathers who fail to pay.

For fathers who do not agree with this blanket sum, they could appeal at the Syariah court, she said.

She was speaking at a forum in conjunction with advocacy group SIS Forum (Malaysia)’s launch of its 10-year statistics and findings from its free legal advice service, Telenisa.

Experiences of single mothers

Hajar stressed the importance of having these blanket child maintenance sums that take effect upon divorce to legally bind the fathers, to prevent them from forgetting their responsibility or obligation to their children after divorce.

Citing real-life examples of KSIT members’ struggles, Hajar said one mother was divorced by her husband shortly after giving birth to a child with disabilities, and has been going to court for years to claim child maintenance.

The child is now aged 17, and the unpaid child support has now accumulated to RM78,000.

In another KSIT member’s case, Hajar said a former husband, after years of non-payment, was suddenly able to settle RM38,700 in accumulated child support when the court issued a committal order to jail him for breaching court orders.

This indicates the father was irresponsible and there was a weakness in the Syariah judiciary’s enforcement, Hajar said, adding that it can cost thousands of ringgit for mothers to reach the committal stage in courts.

While there might be mothers who do not claim unpaid child maintenance because they believe the child’s father is unable to afford it, Hajar said this cannot be normalised and that they should still claim for it.

Syariah lawyer Sarah Mohd Ali told Malay Mail that she agreed with the idea for each state and the Federal Territories to have such blanket child support sums applicable to all fathers based on income tiers, but said it should only be a temporary amount until the Syariah court has a full hearing and decides what a father should pay as child maintenance in each specific case.

Sarah said this should only be made as an interim court order, as the actual financial needs of each child, and whether the amount is sufficient, would not be known without a full trial.

“So don’t make it a permanent order. Just interim order, until the case is being brought to full trial, so at least help the mother to survive day-to-day,” Sarah, who was also a speaker at the forum, told Malay Mail.

“Interim as the figures may not be final as it didn’t go for full trial yet. Judge doesn’t know the father’s income and liabilities. The interim child maintenance is to assist the mother temporarily until final child maintenance order issued,” she said.

She explained that during the full trial for child support orders, the Syariah court would look at the overall picture and also take into account the father’s monthly income, expenses and liabilities through documents such as payslips and bank statements.

With the full trial for child support orders possibly taking years to conclude, Sarah said fathers with a “conscience” would still pay while waiting for the court’s decision.

But there might also be fathers who “wash their hands” off their child just because there is no court order yet, which is why this temporary or interim order is important so that the father is required to pay something every month until the full trial ends, she said.

Why mothers need to get court orders for child support

Crucially, Sarah said mothers can only claim for defaulted or unpaid child support payments from the date there is a court order for child maintenance.

In other words, mothers will not be able to claim unpaid child support for the period before the court order exists.

So while waiting for a full trial, if the court grants an interim order for child support and the father fails to pay, the mother can then claim these defaulted interim sums starting from the date the order was issued.

Alternatively, Sarah said mothers also have the relatively faster option of “Sulh” or mediation in Syariah courts to try to settle the child support issue, instead of going for a full trial or having an interim sum that the mother might think is too low for the child’s needs.

If both the father and mother agree to the child support figures during this mediation, a settlement agreement will be drafted and then brought before a judge to endorse it as a court order to settle the matter without going through a full trial, she said.

Men have obligation to financially support wife, children during marriage too

She said Muslim men are also required to provide child maintenance during marriage, so women can actually claim unpaid child support even before a divorce takes place or even if they do not want a divorce.

Sarah suggested that the interim blanket maintenance order could also be used in such situations of unpaid child support during marriages.

She also suggested that the interim order could apply to husbands who fail to pay the wife’s maintenance, including when the divorce is a contentious matter and it may take a longer time for the divorce to be finalised.

“If contentious, it’s going to take some time, so maybe there’s another structure whereby we can say that okay, while pending, maybe have to provide interim order, continue supply ‘nafkah’ especially to the children, but the wife also,” she told Malay Mail.