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Legal Table
Legal Text

Legal History:

For Muslim Bruneians, Islamic law is particularly influential in the area of family law. Sources of law are legislation (imperial statutes, common law, equity, etc.), Islamic law (Shafi’i views, or opinions of other three Sunni schools with the Sultan’s approval), ancient custom and Malay custom.

During the 15^th and 16^th centuries, the Brunei Sultanate controlled the north-western coast of Borneo and parts of Kalimantan and the Philippines. European expansion from the 16^th century led to the loss of Brunei’s possessions to the Spanish and Dutch. In the 19^th century, the Sultan of Brunei sought British aid in defending his coasts from piracy. The British explorer James Brooke was made Rajah of Sarawak in 1839 and the British annexed the island of Labuan in 1846. The Sultan accepted protectorate status under Britain by the late 19^th century, formalised in 1906 by a treaty providing that the Sultan would seek the advice of the British Resident on all matters outside of local custom and religion. The Constitution was adopted in 1959 allowing for internal self-rule and establishing a Legislative Council, with the powers of the British Resident transferred to the Sultan and his appointed officials. A 1971 agreement ended Brunei’s protectorate status, with Britain retaining control over defence and foreign relations. Brunei gained full independence in 1984.

The Mohammedan Laws Enactment 1912 promulgated under British rule was based on both custom and Islamic law. The Enactment covered limited aspects of family and criminal law and delineated the jurisdiction of Kathis’ Courts. It was followed by the Mohammedan Marriage and Divorce Enactment 1913 providing for registration through kathis. Both Acts were repealed by the 1955 Religious Councils, Kathis’ Courts and State Customs Act. Section VI of Act contains provisions on marriage and divorce applicable to marriages where both parties are Muslim and which were solemnised according to Muslim law. The Act also regulates the judicial application of Islamic family law, provides penalties for breach of its terms, etc.

 Schools of Fiqh: The majority of the population are Shafi’i Muslims. There are also Buddhist and Christian minorities, as well as segments of the population adhering to indigenous religions.

 Constitutional Status of Islam(ic Law): The Constitution was promulgated 29^th September 1959 (with some provisions suspended under the State of Emergency since December 1962 and others since independence on 1^st January 1984). Article 3 declares Islam the state religion, "according to the Shafi’i sect". Article 3 also provides that "the Head of the religion of Brunei Darussalam shall be His Majesty the Sultan and Yang Di-Pertuan (Head of State)."

 Court System: Brunei maintains separate shari’a and regular court systems, with the former having jurisdiction over Muslim personal status. Shari’a courts decide personal status cases or cases relating to religious offences following Shafi’i opinion, then legislation by the Religious Council (Majlis) under the terms of the 1955 Religious Council, State Customs and Kathis’ Courts Enactment. The Council may have recourse to non-rajih Shafi’i interpretations or positions from other schools of fiqh if required by maslaha and approved by the Sultan.

 Notable Features: The minimum marriage age is not specified, but the legislation does provide that validity of marriage requires meeting all the conditions of validity according to the sect to which the parties belong. The wali’s consent is also a requirement for validity of marriage. A marriage is void if both parties have not given consent. Marriage registration is obligatory, through kathis authorised as registrars, or solemnised by a kathi in the presence of a registrar. Polygamy is governed by classical law. Obedience and maintenance are governed by classical law, and a wife deemed to be nashiza is also liable to penal sanctions. In case of the husband’s failure to maintain, the wife may apply to a kathi for a maintenance order, but sums and the time period for which the wife may claim arrears is not specified.

The legislation specifies that the husband may divorce his wife with one, two or three talaqs in accordance with Muslim law. The divorcing husband must report the divorce to the registrar within seven days. A woman may obtain a judicial dissolution according to Muslim law by applying to the kathi who will summon the husband. If the husband consents, the divorce is registered. If the husband refuses, the kathi may propose cherai tebus talak (khul’), with the court assessing the sum payable by the wife to the husband according to the status and means of the parties. If the husband does not agree to granting a khul’ the kathi will appoint two arbitrators who may be given the authority to decree a divorce if parties agree to such a settlement. The wife may also be issued a certificate of presumption of death if husband is believed to have died or has not been heard from for an extended period of time. A woman divorced by her husband may apply to the kathi for mattah (muta’ al-talaq/consolatory gift) or maintenance (of a sum and for such period as the court sees fit). Child custody and guardianship is governed by classical law.

Succession is governed by classical law.

Notable Cases:

Law/Case Reporting System: Case reporting is through the Law Reports of Brunei, continued in Judgements of the Courts of Brunei Darussalam from 1986.

 International Conventions (with Relevant Reservations): Brunei acceded to the CRC in 1995, submitting that Brunei "expresses its reservations on the provisions … which may be contrary to (Brunei’s) Constitution and to the beliefs and principles of Islam, the State religion, and without prejudice to the generality of the said reservations, in particular expresses its reservations on articles 14, 20 and 21". (Article 14 relates to the child’s freedom of religion and conscience and Articles 20 and 21 relate to adoption.)

Background and Sources: Hooker, Islamic Law in South-East Asia, Singapore, 1984; Ibrahim, The Status of Muslim Women in Family Law in Malaysia, Singapore and Brunei, Singapore, 1965; Mahmood, "Brunei" in Statutes of Personal Law in Islamic Countries, 2^nd ed. New Delhi, 1995; Redden, "Brunei" in Modern Legal Systems Cyclopedia, vol. 9, New York, 1990.