Property inheritance can already be a confusing matter for most people. For Muslims who’re born out of wedlock, it’s a path that’s also filled with complications and stigmatization.
With a recent Federal Court rehearing of the “bin Abdullah” case to be held on 16 August, we’ve decided to write this article to address one important question: Are Muslims born out of wedlock allowed to inherit a property?
Before we delve into the nitty-gritty, let’s take a closer look at some of the finer details.
What does it mean to be born “out of wedlock”?
Wedlocked = married. Therefore, born “out of wedlock” simply means being born to parents who were not married at the time of birth.
This means that the child is illegitimate…right? Well, not necessarily. It actually depends on the circumstances surrounding each case. We’ll dive deeper into all of that, later on. But first, let’s answer the main topic.
Can Muslims born out of wedlock inherit property?
Generally speaking, and to get straight to the point: Yes, they can!
To be less concise… only under certain circumstances. Remember, the law is never that simple! For this, we’ll have to refer to Section 11(1) of the Legitimacy Act 1961:
11.(1) Where, on or after the prescribed date, the mother of an illegitimate child, the child not being a legitimated person, dies intestate as respects all or any of her property, and does not leave any legitimate issue surviving her, the illegitimate child, or if he is dead his issue, shall be entitled to take any interest therein to which he or his issue would have been entitled if he had been born legitimate.
This basically means that illegitimate children can only inherit property under these 3 conditions:
- The property in question belongs to the mother.
- The mother passed away without a will (estate planning lawyers refer to this as ‘intestate’).
- The mother does not have any other legitimate descendants (children, grandchildren etc).
To give you a rough idea, an illegitimate Muslim child born out of wedlock would NOT be able to inherit property in the example below:
“Ahmad’s mother owns a condominium unit, but unfortunately passed away suddenly in a car accident. In this case, since the incident wasn’t foreseeable due to its unexpected nature, his late mother left behind no will. However, Ahmad has two other siblings who are legitimate.”
But in a sample scenario like the one below, he would:
“Ahmad’s mother owns a condominium unit, but unfortunately passed away suddenly due to a heart attack. Since this was an unexpected incident, his late mother didn’t manage to leave a will. Ahmad is an only child, his late mother does not have any other children.”
Of course, everything you’ve just read above is actually applicable to Malaysian illegitimate children in general. That specific law has no mention of Muslims, or anything to do with marriage whatsoever.
And now, here’s another twist: what if Muslim children were still considered illegitimate, even if their parents got married not long after? It gets a little tricky from here, but we’ll try to keep it as straightforward as possible!
Are children born out of wedlock automatically considered illegitimate?
Yes, it used to be that way. It doesn’t matter if the child is Muslim or non-Muslim, as long as he/she was born out of wedlock, then he/she would be considered illegitimate and not a citizen of Malaysia.
However, many estate planning lawyers argued that under Section 1(c) of the Second Schedule in the Federal Constitution, the child should receive Malaysian citizenship as long as one of the child’s parents is Malaysian:
(c) every person born within the Federation after September, 1962, of whose parents one at least was at the time of the birth either a citizen or permanently resident in the Federation, or who was not born a citizen of any other country.
This was how it used to work in Malaysia – if the child was born out of wedlock, he or she would automatically adopt the citizenship of the mother.
That means, if the mother gave birth in Malaysia but is legally a Thai citizen, the child would not be documented as Malaysian, but Thai!
Whether or not the father is Malaysian wouldn’t matter, as the child would hold the same citizenship as the mother, by default. This law comes under Section 17 of the Federal Constitution.
BUT! If you were to click that link, you would see that the particular law has been repealed (read: revoked)!
So, what happens if the parents got married after the birth?
Thankfully, parents will be able to apply for the child to be legitimated after they officially register their marriage. For this, we refer to Section 4 of the Legitimacy Act 1961.
Legitimation by subsequent marriage of parents:
“4. Subject to section 3, where the parents of an illegitimate person marry or have married one another, whether before or after the prescribed date, the marriage shall, if the father of the illegitimate person was or is at the date of the marriage domiciled in Malaysia, render that person, if living, legitimate from the prescribed date or from the date of the marriage, whichever is the later.”
Did you get all that? In short, it means that if the parents got married after the birth of the child, the child will be considered legitimate as long as the father is a permanent Malaysian resident!
But this is where Fatwa steps in… and things get tricky
So far, the above laws again make no mention of whether it applies to non-Muslims only, or Muslims as well. And because of this, the road gets complicated. See, in Islam, illegitimate children are defined by two things:
- Born out of wedlock
- Born less than six months from the date of marriage
Why is there a six month post-marriage period, and how come this clashes with the previous laws you mentioned?
This is because the NRD (National Registration Department) refers to two Fatwa which are mentioned in the Muzakarah (Fatwa = a scholarly pronouncement on a matter of Islamic law).
Thus, because of these two Fatwa, Muslim children born out of wedlock or within six months from the date of marriage are considered illegitimate. They’ll also be registered with the surname “bin / binti Abdullah” in place of their father’s surname.
What does it mean to have the surname “bin / binti Abdullah”?
We mentioned that children born less than six months from the date of their parents’ marriage are considered illegitimate in the eyes of Islam. For such children, they’re considered as having no biological ties with their father, only their mother.
Yep, you can probably guess what this means – the child will not be allowed to inherit the father’s surname, and is not legally recognised as the father’s lineage. Instead, the NRD will register the child with the surname “bin / binti Abdullah.”
To give you a little context, the surname “bin / binti Abdullah” in Malaysia is usually assigned in 2 situations:
- For illegitimate children
- For converts to Islam
But again, this conflicts with Section 13A (2) of the Births and Deaths Registration Act (BDRA), which states that even though the parents may not be legally married, the child may still take on the surname of the father or even the mother, as long as it’s agreed upon by both the parents!
What can be done?
From being unable to open bank accounts, lack of access to public schools, the inability to buy property, and having no access to subsidised healthcare, life can be very challenging for an illegitimate child. The unclear legal guidelines certainly aren’t helping either.
For parents with illegitimate children, the first step is to try and get them legitimized. There are 2 ways to go about this, either:
- Register for both parents to get married under Section 4 of the Legitimacy Act 1961.
- Undergo the procedures of legally “adopting” their child under the Adoption Act 1952.
Sadly, there are time limits in place to apply for an illegitimate child to be legitimated. More specifically? 21 years old.
Especially considering that legal procedures take years upon years to settle, this might not be an option for most. In such cases, parents can avoid the hassle and be able to provide for the child in their will, by clearly stating their rights to inherit the property.