- Matrimonial Property acquired property basically refers to the property acquired by
the joint effort of husband and wife during their marriage. Matrimonial property is the matter of urf / adat/ custom. It is more about matter of family which is based on Islamic hukum on fiqh. - Al-Quran An-Nisa 4 : 32 nd do not wish for that by which llah has made some of you e!ceed others. "or men is a share of what they ha#e earned$ and for women is a share of what they ha#e earned. nd ask llah of his bounty. Indeed llah is e#er$ of all things$ %nowing.& - Hadis 'hat is good in the eyes of Muslim is good in the sight of (od& - Maqasid Syariah o Property ) Protecting wealth. - Ur *rf is a source of rulings where there are not e!plicit primary te!ts of the +ur,an and -unnah specifying the ruling. *rf can also specify something generally established in the primary te!ts. .he term urf$ meaning /to know/$ refers to the customs and practices of a gi#en society. lthough this was not formally included in Islamic law$ 012 the -haria recogni3es customs that pre#ailed at the time of Muhammad but were not abrogated by the +ur,an$ called /4i#ine silence/. Practices later inno#ated are also justified$ since Islamic tradition says what the people$ in general$ consider good is also considered as such by llah. ccording to some sources$ urf holds as much authority as 'ijma 5consensus6$ and more than qiyas 5legal reasoning by analogy6. *rf is the Islamic equi#alent of /common law/. !"ndi#i"ns !us#"$s #" %ulill #" Ha&' L'(al E')#* cceptable to the people of sound mind "requently and (enerally practiced Pre#alence at the time of the transaction in question -ubordinate to written stipulation 5statutory or contract pro#ision6 "riendly with Shariah or Shariah spirit. - Ma+ha, Syai-i 7arta -epencarian was recogni3ed under Islamic law based on the syariah principle and it can be found in l-*mm where Imam -yafii wrote that when a dispute occurs between man and a woman in regard to articles or household furniture in their household as a result of their di#orce or e#en though not separated or both husband and wife die or one of them dies and in the situation where both husband and wife die or one of the two of them dies a dispute arises among the heirs on one of the two sides the method for resolution in all cases are the same. .his ma3hab does not recognised the opinion of certain scholars which says that this type of matrimonial property is equal to syarikah al-abdan. It is because ability and skills difficult to be measured. - Ma.i$ 8ustom is the basis of judgment& 8ustom is of force&9 *nder the guidance of custom the true meaning is abandoned& 8ustom is only gi#en effect to$ when it is continuous or preponderant& thing known by common usage is like a stipulation which has been made& 'hat is directed by custom is as though directed by law&
Malaysian %a$ily La/ - Isla$i) %a$ily La/ A)# 0%T1 A)# 2345 i1 6'ini#i"n " Ma#ri$"nial Pr"7'r#y r'(ardin( Isla$i) %a$ily A)# - -.: Islamic "amily ;aw 5"ederal .eritory6 ct <=>? - /harta sepencarian/ means property jointly acquired by husband and wife during the subsistence of marriage in accordance with the conditions stipulated by 7ukum -yara/ - -. @>5<6 Islamic "amily ;aw 5"ederal .eritory6 ct <=>? stated thatA 5<6 .he 8ourt shall ha#e power$ when permitting the pronouncement of talaq or when making an order of di#orce$ to order the di#ision between the parties of any assets acquired by them during the marriage by their joint efforts or the sale of any such assets and the di#ision between the parties of the proceeds of sale. 5:6 In e!ercising the power conferred by subsection 5<6$ the 8ourt shall ha#e regard to- 5a6 the e!tent of the contributions made by each party in money$ property$ or labour towards acquiring of the assets9 5b6 any debts owing by either party that were contracted for their joint benefit9 5c6 the needs of the minor children$ of the marriage$ if any$ and$ subject to those considerations$ the 8ourt shall incline towards equality of di#ision. ii1 6'ini#i"n " Ma#ri$"nial Pr"7'r#y r'(ardin( !as's Hujah Lijah binti Jamal v. Fatimah binti Mad Diah [1930] 16 MLJ 63 Briggs C. defined Dharta sepencarianE as property acquired during the subsistence of their marriage by a husband a wife out of their resources or by their joint efforts. Piah bt Said v. Che Lah bin !an" #19$3% Jld. & J.H.' %adhi Besar of Penang defined the terms as9 Property acquired jointly during the subsistence of the marriage as a result of joint efforts of the parties. .his would arise in cases where the parties were either employed in similar occupations or otherwise and whether the contributions by the parties were formalised or not$ and irrespecti#e of whether there was a clear di#ision of functions or otherwise.& iii1 !as's (an" Chi) v. bdul Jamal #19$*' 6 HJ1+6 .he learned %adhi said to be effectA Dthe concept of harta sepencarian is of the property that is acquired during the marriage with both the husband and wife contributing by their efforts or money to acquire the propertyE ,ijah v Mat li [1$$+] v Mat li [1$$+] + -( 1&+ .he parties- jointly rented lands and planted jointly rented lands and planted padi and made nipah sugar. .he proceeds from the sale were sugar. .he proceeds from the sale were partly utilised for household e!penses$ the remainder for household e!penses$ and the remainder being kept by the husband. 4i#orceA the wife sued for FM@G-half-share- balance of joint earnings. 8ourtA +adhi ga#e e!pert e#idence ga#e e!pert e#idence- the wife is entitled to a half-share of all property acquired by the joint e share of all property acquired by the joint earnings of husband and wife during co#erture. Matrimonial Property to the wife. ppealA earning of the spouses during co#erture belonged to the husband unless the MMH <>>G pro#ided o/wise. i&1 Pr"7'r#y A)quir'd ,y 8"in# E"r# .he property is said to be jointly acquired when both husband and wife contribute to the acquisition of the property. 6ir')# %inan)ial !"n#ri,u#i"n ) .he presence of direct financial contribution from both husband and wife appears to be #ery significance in constituting a joint effort property. Haji bdul .ahim v. /0n"at1n ) .he court decided that since there was sufficient e#idence of the wifeEs financial contribution in purchasing the land as well as working on it$ her claim for a half share of the land as harta sepencarian was therefore allowed. 2an Junaidah v. Lati33 ) *pon di#orce the wife claimed her ancillary rights including the harta sepencarian. -ince the land in this case was jointly acquired by both of them$ the -yariah court ordered the husband to pay to the wife a half share of the sale of the land to the amounted to FM@I$ <1G. 4idah v. bdul 5hani ) .he court ordered the property to be di#ided equally since during the trial both parties reached an agreement that the properties including the houses$ buffaloes and money would be equally di#ided between both of them.