Civil Laws at Maldives
The legal system in the Maldives is a fascinating blend of Islamic Shari'ah law and principles influenced by English common law. The Constitution of the Maldives, enacted in 2008, is the supreme law of the land, and it explicitly states that all laws must be enacted in accordance with the Constitution and that no law contrary to Islam may be applied. This foundational principle heavily shapes civil laws.
Here's a breakdown of civil laws in the Maldives:
1. General Legal Framework:
Dual System: The Maldivian legal system is an admixture of Islamic Shari'ah and English common law, particularly influencing civil and commercial laws.
Constitution as Supreme Law: The Constitution (2008, as amended) is the highest legal authority.
Sources of Law: Islamic Shari'ah, statutes enacted by the People's Majlis (parliament), presidential decrees, and customs. When interpreting laws or in cases where the law is silent, judges are directed to consider Islamic Shari'ah.
Court System:
Supreme Court: Highest court, final court of appeal, and constitutional review.
High Court: Hears appeals from lower courts and has some original jurisdiction.
First Instance Courts:
Civil Court: Deals with general civil disputes.
Family Court: Specializes in family matters.
Criminal Court, Juvenile Court, Drug Court.
Magistrate Courts: Located on islands, handle smaller civil and family cases, and misdemeanors.
Department of Judicial Administration: Manages the administrative aspects of the judiciary.
2. Family Law:
This is a prominent area heavily influenced by Islamic Shari'ah.
Key Legislation: Primarily governed by the Family Act (Law 4/2000) and its subsequent amendments.
Marriage:
Minimum age for marriage is 18 years for both genders. Child marriage is prohibited by law.
Consent of both parties is required.
Women are required to obtain "wali" (guardian's consent, typically father or male relative from paternal line) for marriage, which can be obtained through courts in their absence.
Polygyny (up to 4 wives) is permissible for men under specific conditions, subject to government control and financial sanctions for those not adhering to rules.
All marriages must be registered with the courts.
Divorce:
The Maldives has historically had a high divorce rate, partly due to the ease with which husbands could divorce their wives under traditional interpretations of Islamic law.
While unilateral divorce by a man (talaq) is possible, recent laws aim to introduce more court procedures and reconciliation efforts.
Women can seek divorce on specific grounds, such as cruelty, non-maintenance, or the husband forcing prohibited acts.
There is generally no legal equality in marriage regarding access to divorce.
Division of matrimonial assets in divorce is often a challenge due to ineffective laws and non-recognition of women's non-monetary contributions.
All divorces must be registered with the courts.
Children Arrangements:
The law recognizes two principles: custody (hadhanah), which relates to nurturing and raising a child and usually rests with the mother; and guardianship (wilayah), which is about authority and supervision rights and is normally granted to the father.
Child Rights Protection Act (2019) aims to safeguard children's rights.
Domestic Violence: The Domestic Violence Prevention Act (2012) provides for protection orders and allows for marriage dissolution at the request of a woman upon domestic violence, under certain "Thafriq" grounds within Shari'ah. Marital rape is a criminal offense.
3. Property Law:
Maldivian property law is highly distinctive, especially concerning foreign ownership.
State Ownership of Land: The vast majority of land in the Maldives is owned by the state. Outright freehold ownership of land by private individuals (including Maldivian citizens) is very limited, and for foreigners, it is generally prohibited.
Foreign Ownership Restrictions:
Leasehold System: Foreigners can acquire property through leasehold agreements, typically for a fixed term of up to 99 years. These leases are usually for the development of resorts, hotels, or other commercial properties in designated tourism zones.
Investment Criteria: Foreign property purchases require government approval and often a minimum investment amount, especially for large-scale tourism projects. The government encourages investments that contribute to the local economy.
Commercial vs. Residential Use: Properties purchased by foreigners typically serve commercial purposes (e.g., resort development). Residential ownership options for foreigners are very limited; they can lease properties for residential purposes for long terms, but cannot own the land outright.
Maldivian Partners: Some sectors or property types may require joint ventures with Maldivian partners.
Foreign Investment Act: This act governs the conditions under which non-citizens can invest in the country, including property acquisition for tourism-related businesses.
Registration: Lease agreements and property-related rights must be registered with relevant government authorities.
4. Contract Law:
Key Legislation: The Contract Law (Law No. 4 of 91) governs contracts in the Maldives.
Basic Principles:
Agreement: A contract is a formal agreement between two or more parties that is legally valid and enforceable.
Consent: Parties must consent freely and voluntarily.
Legal Capacity: Parties must be of sound mind and over 16 years of age (as per the Act, though other laws like the Family Act may set 18 as general age of majority).
Form: Unless specified by law, a contract need not be in any particular form (oral or written). However, for significant transactions like property leases, written agreements are essential.
Offer and Acceptance: A contract is concluded when a clear offer is accepted unequivocally.
Lawful Object and Cause: The subject matter and purpose of the contract must be lawful.
Mistake of Fact: The Contract Law includes provisions for contracts becoming void if based on a fundamental change of circumstances or a mistake of fact.
Ignorance of Law: Ignorance of the laws in force is not a reason to nullify a contract.
5. Tort Law (Civil Liability):
Unlike some jurisdictions, there isn't a single, specialized code for torts.
General Principles: Civil liability for harm caused by an act or omission, not arising from a contract, is derived from general legal principles and case law, often drawing from Islamic law concepts of compensation for harm.
Constitutional Basis: The Maldives Constitution guarantees the right to a safe and healthy environment and measures to promote public health, which can form the basis for legal action in cases like toxic torts.
Penal Code: The Penal Code (Law 9/2014) may also touch upon actions that could lead to both criminal and civil liability (e.g., negligence leading to harm).
6. Inheritance Law:
Shari'ah Basis: Maldivian inheritance laws are primarily based on Islamic Shari'ah, which dictates fixed shares for eligible heirs.
Fixed Shares (Fara'id): Immediate family members receive predetermined portions of the deceased's estate according to specific Shari'ah principles.
Wills: While a Muslim can make a will, it is generally limited to disposing of up to one-third of their estate to non-heirs. The remaining two-thirds (or the entire estate if no will) are distributed according to Shari'ah inheritance rules.
No Inheritance Tax: As of the current information, the Maldives does not impose inheritance tax.
Guardianship: Guardianship of minors aligns with Islamic principles.
Foreigners' Considerations: Expatriates should seek legal advice to understand how Maldivian inheritance law might apply to their assets, especially if they have assets in multiple jurisdictions, as this can be complex.
In summary, civil laws in the Maldives are deeply rooted in Islamic Shari'ah, with modern legislative adaptations and influences from common law, particularly in areas like contract and commercial law. This creates a unique legal landscape, especially in areas like family law and property ownership for foreigners, where the Islamic principles hold significant sway. Anyone engaging in civil matters in the Maldives, particularly foreigners, should seek expert local legal advice.
RELATED Blog
0 comments