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VIVA ANSWER MATRIMONIAL PROPERTY

- 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.