Current legislation on divorce cases invariably favours women in regard to custody of children

Current legislation on divorce cases invariably favours women in regard to custody of children

PETALING JAYA: It would seem that the law is sexist in nature. In the event of a divorce, the mother is regarded as the better parent to have custody of the children.

According to the Father’s Rights Association of Malaysia (FRAM), such an archaic law should no longer apply in a modern society.

FRAM co-founder and president Malcolm Fernandez pointed out that such legislations were formulated in an era when the role of the mother was primarily that of a caregiver and homemaker, while the father’s responsibility was solely to put food on the table.

“That was the family structure (then), so it was always assumed that the child would be better off with the mother after a divorce.”

He said at a time when women are playing a bigger role in what used to be a man’s domain, such as having a job, there should be some reforms in keeping with the times.

“In a world that sees the evolution of legislation to be gender neutral, such laws are an illustration of sexism,” Fernandez said.

He added that the continued application of such laws would be a step back for women, given that it would only cement their stereotyped role as nurturers.

“How are women going to forge ahead to achieve equality? It is hypocritical to say that we want equality, yet still rely on a sexist legislation to tie women down,” he added.

Fernandez noted that joint custody is allowed when both parties come to an amicable settlement, but the instances of the father being granted full custody is “extremely rare”.

He pointed out that for a man to win full custody, he has to prove that his spouse is unfit to care for the children for reasons of unsound mind or addiction to alcohol or drugs.

Fernandez said a child is given the choice when he turns seven, “but if he has been living with the mother, she could invariably make him choose her over his father”.

“Perhaps the court could consider who the child has been residing with predominantly.”

He said the government should take another look at the legislation with a view to amending it to make it more gender neutral.

“This is not about winning or losing. What matters is the interests of the child,” he said.

“Surely, first-world countries which have moved on to joint-custody (options) could not have got it so blatantly wrong.”

Fernandez said it would be great if Malaysia could take the lead and become the first country in Asia to amend such outdated legislations.

Co-deputy chair of the Family Law Committee at the Bar Council Malaysia Alex J.H. Tan said for the father to win full custody, he would have to break the presumption that the mother is the better person to keep the child.

“There have been cases when the father is granted full custody but that was based on physical or mental abuse or neglect of the child.”

“Otherwise, the father would have to prove that the mother had failed to provide a comfortable home environment for the child.”

Tan said if the mother starts a new relationship or remarries and begins to live an immoral lifestyle with the new boyfriend or husband, that can also be grounds for the father to take custody of the child.

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