Introduction
As family structures in Malaysia continue to change, more Muslim families are now raising stepchildren or caring for adopted children as part of their households. While these arrangements are widely accepted and supported by law, they raise an important practical question: Are stepchildren and adopted children treated the same way as biological children when it comes to employment-related benefits in Malaysia?
This article examines the position of stepchildren and adopted children from several perspectives such as the principles of Shariah governing lineage, inheritance, and maintenance, as well as the operations of Malaysia’s employment and social security laws in practice. These include the Employees Provident Fund (“EPF”), Social Security Organisation (“SOCSO”), tax reliefs, and statutory leave i.e. paternity leave.
The term “employee benefits” are inherently broad and encompasses a wide range of entitlements. For the purposes of this article, the discussion is confined to statutory benefits, including EPF and SOCSO, as well as statutory leave i.e. paternity leave. The applicability of these benefits to adopted children and stepchildren will be examined.
Definition of ‘child’ under IFLA
Section 110 of the Islamic Family Law (Federal Territories) Act 1984 (“IFLA”) defines a child’s paternity as follows:
“A child is born to a woman who is married to a man more than six qamariah months from the date of the marriage, or within four qamariah years after the dissolution of the marriage, either by the death of the man or by divorce, the woman not having remarried; the nasab, or paternity, of the child is established in the man…”
This provision demonstrates that under Islamic law, a child’s legal attribution to their parents is determined solely through biological lineage (nasab). It can therefore be concluded that the status of adoption is not explicitly addressed in Islam.
However, the status of stepchildren is recognised in Islamic sources. For instance, in Surah An-Nisa, verse 23, the status of stepchildren is addressed as follows:
“…and also prohibited to you are your step-daughters under your guardianship born of your wives unto whom you have gone in…”.
This verse, in effect, establishes the familial relationship between stepparents and stepchildren by prohibiting marriage between the two parties. However, their attribution of paternity, as with adopted children, remains with their biological parents. In this respect, both groups share a similar legal position which are the adoptive or stepparent is not considered their de facto parent, and the biological parents retain the primary responsibility for maintenance. Consequently, the step- or adoptive parent has no automatic obligation to provide maintenance.
By extension, the responsibility to maintain an adopted children does not automatically fall upon the adoptive parent. The same principle generally applies equally to stepchildren, whose stepparents are likewise not automatically responsible for their maintenance.
Nevertheless, Malaysian law provides a legal framework through which a person may register a child under their care and, in doing so, assume legal responsibility for the child’s maintenance.
For Muslims in Malaysia, the adoption of children is governed by the Registration of Adoptions Act 1952. Under this Act, a child may be registered to their adoptive parents, and by virtue of Section 78(1) of the Islamic Family Law (Federal Territories) Act 1984, if a man takes in and treats a child who is not his own as part of his family, he is legally obliged to support the child while the child is still a minor.
Applicable Benefits/Relief related to Stepchildren and Adopted Children
(a) Tax Relief on Childcare Expenses
Statutory benefits available in respect of children includes tax exemptions. Under Rule 7.2.4 of the Perquisites from Employment Public Ruling No. 5/2019, a tax exemption of up to RM2,400 per year is granted in respect of childcare centre expenses.
The rule defines a “child” as follows:
“…child means a child of the age of 12 years and below and who is a legitimate child or stepchild of an individual or his wife/husband, or a child proved to the satisfaction of the Director General to have been adopted by the individual or his wife/husband in accordance with any law.”
By this definition, biological children, adopted children, or stepchildren are all included within the scope of the tax exemption. This provision helps parents in managing the financial responsibilities associated with childcare.
(b) EPF Withdrawals (Education & Healthcare Purposes)
Children may benefit from their parents’ EPF contributions. The EPF allows withdrawals under specific circumstances, such as for healthcare and education purposes. Employees are permitted to withdraw funds to finance[1] their child’s education. Since adopted and stepchildren are considered dependants, they are equally entitled to this benefit if they are legally adopted child under the Adoption Act 1952.
Parents may also withdraw EPF funds to cover the healthcare expenses[2] of their children including biological children, adopted children and stepchildren, provided that proof of the parent–child relationship is furnished. In this way, the EPF recognises adopted and stepchildren as valid dependants with rights comparable to biological children.
(c) Paternity Leave
Historically, paternity leave was granted at the discretion of employers.
Effective 1 January 2023, Section 60FA of the Employment Act 1955 provides statutory paternity leave of 7 consecutive days to married male employee, which is limited to 5 confinements irrespective of the number of spouses.
Under the Act, eligibility for paternity leave requires the employee to:
a. be a married male employee;
b. have been employed by the same employer for at least 12 months immediately before the commencement of the paternity leave; and
c. notify the employer of the pregnancy of his spouse at least 30 days prior to the expected confinement or as early as possible after the birth.
Although the Act does not expressly state whether this entitlement extends to stepchildren, a strict interpretation of the requirement that the employee be legally married suggests that it could include stepchildren.
(d) SOCSO
Under the Malaysian Social Security Organisation (SOCSO), employees are entitled to social security protections, including benefits for their dependants in the event of the employee’s death.
Pursuant to the Employment Injury Scheme[3] administered by PERKESO defines eligible children as:
- biological child;
- dependent stepchild;
- adopted children; or
- illegitimate children
Such children are entitled to benefits until the age of 21, or until marriage, whichever occurs first. Where the child is pursuing higher education at an institution of higher learning, the benefit continues until the completion of the first degree or until marriage, whichever occurs earlier. In instances where the child is mentally or physically incapacitated and unable to support themselves, benefits will be paid as long as the child is unable to support themselves.
In circumstances where an employee dies outside the scope of a workplace injury, or under the invalidity scheme, stepchildren and adopted children are similarly entitled to a survivor’s pension. The eligibility criteria and duration of this benefit are aligned with those provided under the Employment Injury Scheme[4], thereby ensuring equitable treatment of all dependants.
The unequivocal inclusion of both adopted and stepchildren within the definition of a child ensures that the interests of an employee’s adopted or stepchildren are protected in the event of the employee’s death resulting from a workplace injury.
Conclusion
In conclusion, while Islamic law continues to prioritise biological lineage as the primary determinant of familial rights and duties, Malaysia’s employment and social security frameworks have increasingly recognised the realities of contemporary family structures. The legal recognition of adopted children and stepchildren as “children” for the purposes of tax relief, EPF withdrawals, and SOCSO benefits represents a significant step towards extending protection and equity beyond biological relationships.
Overall, Malaysia’s evolving legal framework reflects an effort to reconcile Shariah principles with contemporary social realities, thereby promoting fairness and compassion in safeguarding the welfare of all children.
Disclaimer: The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such.
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For further information, please contact:
Teoh Alvare, Partner, ZUL RAFIQUE & partners
teoh_alvare@zulrafique.com.my
[1] Section 54(6)(g) of the Employees Provident Fund Act 1991
[2] https://www.kwsp.gov.my/en/member/healthcare/critical-illness
[3] https://www.perkeso.gov.my/en/our-services/protection/employment-injury-scheme.html
[4] https://www.perkeso.gov.my/en/our-services/protection/invalidity-scheme.html
