Federal Court rules Muslims cannot be made party to non-Muslim legal marital disputes

20 January 2022

AJS v JMH [2021] 1 LNS 2017

In AJS v JMH, the appellant filed a judicial separation petition in the High Court against her husband. The appellant alleged that the husband had committed adultery with the respondent, a Muslim, in the present appeals. The present appeals concern primarily the interpretation of sections 3 and 58 of the Law Reform (Marriage and Divorce) Act 1976 (“LRA”). Section 3 provides that the LRA does not apply to Muslims while section 58 provides that damages may be claimed against the co-respondent (i.e. the alleged adulterer) in a divorce petition.

The questions of law raised before the Federal Court were as follows:

• whether section 3(3) of the LRA precludes a non-Muslim petitioner from citing a Muslim as a co-respondent on an allegation, inter alia, of adultery to a petition for judicial separation under section 64 of the LRA (“Question 1”); and
• whether a court, when interpreting section 3(3) of the LRA should have regard to the presumption that Parliament does not intend to legislate in violation of Articles 5(1) and 8(1) of the Federal Constitution (“Question 2”).

The Federal Court held, among other things, as follows:

• In relation to Question 1, the Federal Court judges agree with the Court of Appeal in its literal interpretation of section 3(3) of the LRA.
• In the present case, there should be no unjust result or any practical loss of an effective remedy to the appellant if a reasonable maintenance order is granted against the party who caused the breakdown of the marriage.
• If section 3(3) denies the appellant from obtaining remedy against the respondent, that denial is in accordance with the Federal Constitution. The judges held that they do not see anything unjust or harsh about giving effect to section 3(3) of the LRA. In the premises, the judges find no reason to answer Question 2.