Muslim Inheritance Law
(Faraid)

Zaleha* has been married to Ahmad* for 15 years. They decided soon after their wedding to move into the city and set up a food stall together. The business flourished through the years, and they managed to rent a shoplot and purchase a house. After the birth of their first child, Zaleha decided to stop working. Instead, she took care of the household duties and their child.

Recently, Zaleha noticed that her husband was becoming more distant. She tried to talk to him about their relationship, but her attempts have not been successful. Several weeks ago, he spoke to her about taking another wife. Zaleha was not in agreement. After several discussions with her mother and personal friends, she decided that she would rather have a divorce.

Zaleha was anxious about their matrimonial home. The deed of the house is under Ahmad's name, although she helped in raising the money for its purchase and also the initial mortgage payments when she was working. Would she have any claim over the house if they divorce?

Under the doctrine of harta sepencarian, Zaleha is able to claim for her share in any property acquired by their joint efforts during their marriage. This is provided for under Section 58 of the Islamic Family Law (Federal Territories) Act 1984. Harta sepencarian is defined under Section 2 of the Act as property jointly acquired by husband and wife, whether directly or indirectly, during the subsistence of marriage in accordance with the conditions stipulated by Hukum Syara'.

The Syariah courts, when permitting the pronouncement of talaq or when making an order of divorce, have the power to also divide any assets acquired by the couple during their marriage by their joint efforts. This includes properties, vehicles, land, bonds or shares in the stock market. The courts can also order for the sale of the assets and for the proceeds to be divided between them.

The courts will tend to divide as equally as possible, while taking into consideration the factors below:

• The extent of the contributions made by each party in money, property or labour towards acquiring of the assets;
• Any debts owing by either party that were contracted for their joint benefit;
• The needs of the minor children, of the marriage, if any.

In Zaleha's case, she will have to show that she has made some form of contribution to the purchase of the property and it will be up to the husband to dispute that. If she can show that she has made some form of financial contribution towards the purchase, then her case would be stronger.

However, even if her husband has paid for the property in full or for most of it, the courts can still divide the assets between them, with regards to the considerations below:

• The extent of the contributions made by the party who did not acquire the assets, to the welfare of the family by looking after the home or caring for the family;
• The needs of the minor children of the marriage, if any.

The proportions would be divided according to what the courts think as being reasonable. This means that Zaleha's contributions to the house in terms of housework, or any improvements she has made to the home, and her caring for their child will also be taken into consideration. Nonetheless, in this case, the husband will still receive a larger proportion because of his monetary contributions.

When registering an application for a divorce at the State Syariah Court, you can also claim for harta sepencarian at the same time. However the applications will be heard at different times. The claim for harta sepencarian will only be heard after the divorce case has been settled.

In your applications to the Syariah Court, you are encouraged to appoint a lawyer, as the Syariah judge generally prefers this. If you have any evidence in terms of written evidence like receipts, or witnesses to show that you have contributed to the purchase of the assets or in caring for the welfare of the family, inform the lawyer and bring them with you during the hearing.

Please note that you should always check first with your nearest Jabatan Agama Islam, Legal Aid Bureau or any practicing Syariah lawyer for differences in State Muslim Family Law before proceeding.

*Names changed to protect WAO's client's confidentiality.

Prepared by Jaclyn Kee and Rozana Isa
Women's Aid Organisation - 20 Years of Service to Women and Children

Fortnightly Column by WAO on Sunday Mail (Reprinted with permission from Sunday Mail)