Parties to a divorce must resolve ancillary matters in the Syariah Court following a decree; civil courts do not have jurisdiction over issues already adjudicated by the Syariah Court.

[10] We note that since the enactment of s 35A AMLA in 1999, applications have been made to the Syariah Court for leave to commence or to continue civil proceedings involving disposition or division of property on divorce or custody of children. We are aware of two applications, ie, Applications Nos 23895/CC/1 and 33882/CC/01, where such leave was granted. However, there are no Grounds of Decision given in both cases and no appeal has been lodged in respect of the granting of leave. Neither are there Grounds of Decision or appeal lodged in those cases where leave was not granted. The present appeal is the first case to the Appeal Board that concerns s 35A.

[11] On the present case, we agree with the President that nowhere in the AMLA or for that matter the MMDR is there a provision that states that an applicant who wishes to commence civil proceedings on the ancillary matters must apply for leave before the making of the decree or order for divorce by the Syariah Court. As he correctly observed, a plain reading of s 35A AMLA provides that the application is to be made after the making of the decree or order for divorce by the Syariah Court. The wife was, therefore, wrong in our view, when she stated in her affidavit dated 7 July 2011 that "any application for the Certificate of Leave should have been made before the commencement of any proceedings in the Syariah Court".

[12] However, we are not in agreement with the President when he stated in his Grounds of Decision that in granting leave the husband "now has the opportunity to make variation applications concerning the custody of the children and the disposition and division of matrimonial property at the civil courts". Under s 35A, leave is only to be granted to commence or to continue with the civil proceedings and we should add that continuance is only limited to the issue of custody. Nowhere does it state that the leave is for the purpose of variation applications. If that was the case, the phrase in s 35A should be "commence a variation application" and not "commence civil proceedings".

[13] Further, the phrase "order for divorce" in s 35A(2) cannot be interpreted to include ancillary matters. It is noteworthy that the phrase "after making a decree or order for divorce" also appears in s 52(3) AMLA, a provision empowering the Syariah Court to make ancillary orders on (a) emas kahwin and marriage expenses, (b) consolatory gift, (c) custody, maintenance and education of minor children and (d) disposition or division of property on divorce. Clearly s 52(3) refers to ancillary orders to be made after the making of a decree or order for divorce but before ancillary issues are dealt with and ancillary orders are made.

[14] Our view that the civil courts cannot vary the orders of the Syariah Court is supported by the fact that s52(6) AMLA allows the Syariah Court to vary its own orders. The opportunity to make variation applications concerning custody and disposition or division of matrimonial property already exists through the channel of the Syariah Court regime.

[15] The granting of leave would not be applicable where the parties have decided to allow the Syariah Court to adjudicate on the ancillary matters relating to the disposition or division of property or custody of any child and orders relating to these matters have been made by the Syariah Court. It does not make sense, wher