TABLE OF CONTENTS

• 1) MAHR & PEMBERIAN

(HAD BEEN COVERED IN PREVIOUS LECTURE ON “MARRIAGE
REQUIREMENTS”)
• 2) MAINTENANCE
• (HAD BEEN COVERED IN PREVIOUS LECTURE ON “STATUS OF
MARRIED WOMEN”)
• 3) MUTA’AH
• 4) HARTA SEPENCARIAN
• 5) DISTRIBUTION OF PROPERTY UNDER ADAT PERPATIH

2
• MUTA’AH

3
 (1)DEFINITION

MUTA'AH IS A CONSOLATORY PAYMENT BY A MAN TO HIS EX-WIFE

BECAUSE HE HAS DIVORCED HER.

SECTION 2 OF IFL (FT) ACT

• “MUTA'AH MEANS A CONSOLATORY GIFT THAT IS REASONABLE
ACCORDING TO HUKUM SYARAK, GIVEN TO A DIVORCED WIFE”

4
 (2) AUTHORITY

• AL BAQARAH 2:241
• ‘FOR DIVORCED WOMEN MUTA`AH SHOULD BE PROVIDED ON
A REASONABLE SCALE. THIS IS A DUTY ON THE RIGHTEOUS.’

5
• (3) MUTA'AH IS PAYABLE IN ALL CASES OF DIVORCE
EXCEPT:
• (I) WHERE THE HUSBAND HAS OBTAINED FASAKH
BECAUSE OF DEFECT IN THE WIFE
• (II) THE WIFE HAS OBTAINED FASAKH BECAUSE THE
DEFECT OF HUSBAND
• (III) EITHER OR BOTH OF THEM BECOME MURTAD

6
RATIONALE FOR MUTA`AH

• (1) AS A COMPENSATION AND RECOGNITION OF

THE BENEFIT OBTAIN BY H FROM W AND
ATTENTION GIVEN TO THE WIFE DURING
MARRIAGE.

• (2) TO COVER UP SHAME OF W OR TO REMOVE

FALSE ACCUSATION OR TO START A NEW LIFE.

7
 AMOUNT OF MUTA`AH

• IF POSSIBLE, MUST MUTUALLY AGREED .

• IF NOT, THE COURT SHOULD DECIDE BASED ON AL
BAQARAH 2: 236
‘…THE WEALTHY ACCORDING TO HIS MEANS AND
THE POOR ACCORDING TO HIS MEANS..’

• THUS, BASIC PRINCIPLE IS FINANCIAL STATUS OF H

AND SOCIAL STATUS OF WIFE.

8
ASSESSING THE AMOUNT OF
MUTA'AH
• IFLA DOES NOT PRESCRIBE ANY SPECIFIC AMOUNT OR FACTORS TO BE
CONSIDERED.
• BASED ON THE PRACTICE IN SYARIAH COURT, SEVERAL IMPORTANT FACTORS ARE
TAKEN INTO CONSIDERATION BY THE COURT BEFORE FIXING THE AMOUNT OF
MUTA'AH:-
• FINANCIAL STANDING OF H;
• LINEAGE AND FAMILY STATUS OF W;
• CHARACTER OF W;
• LENGTH OF MARRIAGE;
• REASON FOR DIVORCE;
• OTHER FACTORS TO BE RELEVANT IN ORDER TO GIVE FAIR AND JUST TREATMENT.

9
 JURIST OPINION

• SHAFIE: MUTA`AH SHALL BE PAID TO THE WIFE:

• (I) IN A DIVORCE BEFORE CONSUMMATION EITHER SHE DID NOT

RECEIVE ANY MAHR YET OR BEFORE HER DOWER IS FIXED. H MUST
PAY.

• (II) W DIVORCE AFTER CONSUMMATION WHETHER RAJ’II OR BAIN

• (III) THE DISSOLUTION OR SEPARATION NOT DUE TO WIFE`S FAULT.

10
SECTION 56 OF IFLA(FT)

• 1.IT PROVIDES THAT WOMEN WHO HAS BEEN DIVORCED WITHOUT

JUST CAUSE BY HER HUSBAND MAY APPLY TO COURT FOR
MUTA`AH.
• (NOTE: IF W NUSYUZ- IS A JUST CAUSE FOR DIVORCE. THEREFORE, W
MAY NOT ENTITLE FOR MUTA`AH)

• 2.AFTER HEARING THE PARTIES, THE COURT SHALL ORDER THE

HUSBAND TO PAY SUCH SUM AS MAY BE FAIR AND JUST ACCORDING
TO HUKUM SYARAK.

11
DECIDED CASES

12
 RAHANIAH V HJ. UJANG (1983) 4
JH 270
• W CLAIMED MUTA`AH RM10,000 BUT H OFFERED RM1,000.
CHIEF KADI REFERRED TO MUGHNI MUHTAJ, WHERE
THERE IS DISPUTE AS TO THE AMOUNT OF MUT`AH, THE
KADI SHOULD DECIDE ACCORDING TO HIS DISCRETION
AND TAKE INTO ACCOUNT WHAT IS FAIR ACCORDING TO
THE POSITION OF PARTIES. i.e. FINANCIAL POSITION H
AND QUALITY OF WIFE.

• COURTALSO REFERRED TO AL BAQARAH: 231 AND

ORDERED H TO PAY RM2000.

13
 TG ANUM ZAHRAH V DATO DR
HUSSEIN (1980) 3JH 125

• DIVORCEDWIFE CLAIM FOR MUTA`AH. IT WAS FOUND

THAT THE HUSBAND WAS THE ONE WHO EFFECTED THE
DIVORCE AND NO EVIDENCE TO SHOW WIFE NUSYUZ.
• SURAHAL AHZAB: 49 WAS REFERRED. THE COURT
ORDERED HUSBAND TO PAY RM25,200 AS MUTA`AH.

14
 MAIMUNAH V ABDULLAH
(1987) 7 JH 88
• W APPLIED FOR DIVORCE .THE SHARIAH JUDGE FOUND THAT DIVORCE WAS CAUSED BY
THE WIFE AS SHE WAS UNCOOPERATIVE AND HAD LEFT MATRIMONIAL HOME. HER
APPLICATION FOR MUTA`AH WAS DISMISSED.

• JUDGE RELYING ON THE VIEW OF IMAM SHAFII THAT ALTHOUGH THE WIFE IS
ENTITLED FOR MUTA’AH IF SHE HAS BEEN DIVORCED BY HER HUSBAND AFTER
CONSUMMATION OF THE MARRIAGE, SUCH PAYMENT IS NOT OBLIGATORY IF THE
DIVORCE IS CAUSED BY THE WIFE, AS THE PURPOSE OF MUTA’AH IS TO LIGHTEN THE
BURDEN OF WIFE AND HELP HER AFTER THE DIVORCE IF SHE DOES NOT AGREE TO
DIVORCE AND DOES NOT WANT TO BEAR THE BURDEN OF THE DIVORCE.

• HER CLAIM FOR MUTA’AH OF RM1750 WAS DISMISSED

15
 ADNAN HAWA BT MOHAMAD V
SAPIEE BIN MUDA [2014] 2 SHLR
45
• P CLAIMED FOR RM 100,000 AS MUTA’AH FROM D.
• D WAS A TEACHER WITH A SALARY OF RM 3,066.22 PER MONTH AND AN
INCOME DERIVED FROM OIL PALM AND RUBBER TREES IN THE
ESTIMATION OF RM 800 AND RM 700. D’S MONTHLY TOTAL INCOME
WAS RM 5,693.61 WHILE THE LIABILITIES THAT HE HAS TO SETTLE
WERE RM 4,328.39 RESULTING IN A BALANCE OF RM 1,365.22 PER
MONTH.
• HELD:THE AMOUNT CLAIMED WAS AN UNREASONABLE AMOUNT
COMPARED TO THE FINANCIAL ABILITIES AND SHORTCOMINGS OF
THE HUSBAND. D WAS NOT ONE WHO HAD STRONG FINANCIAL
ABILITY AS HE HAD DEBT LIABILITIES.
• D WAS ORDERED TO PAY RM 10,000 AS MUTA’AH TO P.
16
AHMAD SHAH BIN AHMAD
TABRANI V NORHAYATI BT
YUSOFF [2004] 18 JH 33
• P CLAIMED FOR RM 250,000 AS MUTA’AH FROM D.
• D WAS A CONSULTANT ENGINEER WITH A SALARY OF RM 9,000
PER MONTH.
•D WAS ORDERED TO PAY RM 50,000 AS MUTA’AH TO P BY
INSTALMENT OF RM 1,000 PER MONTH.
• THE COURT CONSIDERED FINANCIAL STANDING OF THE H &
CHARACTER OF THE W (THE W HAD RESIGNED FROM HER JOB
TO BECOME A FULL TIME HOUSEWIFE IN ORDER TO GIVE
FULL COMMITMENT TO THE FAMILY)

17
NORHAYATI BT MAMAT V A
RAHMAN BIN ISMAIL [2012] 1
SHLR 109
• PARTIES WERE MARRIED ON 30.3.1999 AND DIVORCED WITH ONE
TALAQ ON 3.6.2004. THEY HAD NO CHILDREN FROM THE SAID
MARRIAGE. P WAS A HOUSEWIFE AND D A SUCCESSFUL
ENTREPRENEUR WHOSE MONTHLY SALARY WAS NOT LESS THAN
RM10,000. P CLAIMED AGAINST D FOR THE MUTA’AH OF RM 100,000.
• COURT HELD: THE AMOUNT OF MUTA’AH SHOULD COMMENSURATE
WITH THE MEANS OF D, THE SOCIAL POSITION AND
CIRCUMSTANCES OF THE WIFE, WHETHER P FROM A DISREPUTABLE
LINEAGE OR WHETHER SHE HAVE ANY IMPEDIMENTS.
• D WAS ORDERED TO PAY THE SUM OF RM21,000 AS MUTA’AH.

18
 ALMAH V MAZLIN [2017] 3
SHLR 14
• PARTIES WERE MARRIED ON 14.1.1988 AND DIVORCED ON
27.3.2008.
• P CLAIMED MUTA’AH AGAINST D FOR RM 500,000
• COURT FIXED THE AMOUNT OF RM 35,600 (DOUBLE
MULTIPLIER OF D’S INCOME DURING THE DIVORCE)-D’S
MONTHLY INCOME- RM 17,809.23
• IN DETERMINING THE AMOUNT OF MUTA’AH, COURT TOOK
INTO CONSIDERATION; THE MARRIAGE WAS CLOSE TO 20
YEARS, P WENT THROUGH HARDSHIP WITH D DURING THE
COURSE OF MARRIAGE, P HAD HER OWN INCOME AND
HELPED IN MANAGING THE FAMILY.

19
 SHAHNAZ BT MAJID V DATO’ SRI
MAHMUD ABU BEKIR TAIB [2018] 3
SHLR 15
• PARTIES WERE MARRIED ON 9 JANUARY 1992 AND DIVORCED ON 11 MAY 2011 THROUGH TALAK RAJIE.

• P CLAIMED MUTA’AH AGAINST D FOR A SUM OF RM100M.

• SHARIAH HIGH COURT (KUALA LUMPUR) FIXED MUTA’AH OF RM 30M.

• THE COURT RELIED ON THE SYAFIE SCHOOL WHERE IT CLARIFIED THAT THE CLAIM FOR MUTAAH WAS
MANDATORY FOR THE HUSBAND WHEN THERE WAS A DIVORCE HAPPENED NOTWITHSTANDING THE
TYPES OF DIVORCE EXCEPT THE DIVORCE HAPPENED BEFORE A SEXUAL INTERCOURSE.

• THE COURT OPINED THAT THE EXPERT WITNESS IN THE CURRENT CASE WAS COMPETENT AND THE
STATEMENTS GIVEN BY THE EXPERT CAN BE ACCEPTED AND RELEVANT AS THE WITNESS WAS
EXPERTISE ON THE RELATED FIELD AND GOT EXPERIENCE IN HANDLING THE VALUATION MADE. THE
COURT SATISFIED THAT THE FACTS GIVEN BY THE EXPERT WITNESS WAS CONSISTENT BASED ON THE
GENUINE OR AUTHENTIC VALUATION. D FAILED TO PROVE OR CHALLENGE THE ALLEGATION MADE BY
P BASED ON THE STATEMENTS GIVEN TO DENY THE REPORT MADE BY THE EXPERT WITNESS

20
CONT…
• FORTHE QUANTUM OF MUTAAH, EVEN THOUGH
THERE WAS NO SPECIFIC VALUATION AND
MECHANISM, COURT TOOK INTO CONSIDERATION
ON THE FACTOR OF CAPABILITY OF THE HUSBAND,
THE POSITION OF THE HUSBAND AND WIFE AND
OTHER RELEVANT FACTORS SUCH AS THE SADNESS
OF THE WIFE, THE EMBARRASSMENT SUFFERED BY
THE WIFE AND OTHERS.

21
 NORDHIAH JURY V AHMAD
ZULKIFLEE [2018] 1 SHLR 32
• P AND D WERE MARRIED IN 1986 AND DIVORCED IN 2003. P FILED A CLAIM FOR MUTAAH
AGAINST D AMOUNTING TO RM500,000. THE ISSUES THAT AROSE WERE WHETHER P WAS
ENTITLED TO MUTAAH FROM D AND IF YES, WHAT WAS THE AMOUNT OF MUTAAH WHICH
P WAS ENTITLED TO RECEIVE.

• SHARIAH HIGH COURT (SHAH ALAM) FIXED MUTA’AH OF RM 185,500.

• HELD: THE PROVISIONS OF THE LAW DO NOT PROVIDE A CLEAR GUIDELINE FOR THE
COURT TO DETERMINE THE PROPER AND APPROPRIATE AMOUNT OF MUTAAH. BASED ON
THE VIEWS OF THE SHAFIE SCHOOL OF THOUGHT, THE AMOUNT OF MUTAAH WAS
DEPENDENT ON THREE FACTORS, NAMELY;

• THE ABILITY OF THE HUSBAND DURING DIVORCE TO PAY MUTAAH,

• THE STATUS OF THE WIFE, AND

• THE STATUS OF THE WIFE’S ANCESTRY.

JUDICIAL PRECEDENTS SHOWED THAT THESE THREE FACTORS WERE REFERRED

22
CONT…
• D’S INCOME DURING THE DIVORCE IN 2003 WAS RM37,100. AS
CLINICAL DOCTORS, P AND D WERE SURELY KNOWN BY THE
SOCIETY AND THE DIVORCE MUST HAVE HAD AN ADVERSE
EFFECT ON P’S REPUTATION AND AS FAR AS HER STATUS WAS
CONCERNED, THE IMPACT WOULD NOT BE THE SAME AS
NORMAL WIVES. P HAD ALSO INDIRECTLY CONTRIBUTED
TOWARDS THE ADVANCEMENT OF THE CLINIC AND THIS
GAVE BOOST TO D’S INCOME AS A HUSBAND. THEREFORE, P
WAS TO RECEIVE MORE THAN D’S INCOME. SHE WAS ENTITLED
TO RECEIVE FIVE TIMES D’S INCOME.

23
• HARTA SEPENCARIAN
24
 DEFINITION

• 1.HARTA SEPENCARIAN IS DEFINED IN SECTION 2 IFLA

(FT) AS PROPERTY JOINTLY ACQUIRED BY HUSBAND AND
WIFE DURING THE SUBSISTENCE OF MARRIAGE IN
ACCORDANCE WITH THE CONDITIONS STIPULATED BY
HUKUM SYARA`.

25
• HARTA SEPENCARIAN IS BASED ON MALAY CUSTOM .THIS WAS
HELD IN ROBERT V UMI KALTHUM(1960) 1MLJ 163

• “HARTA SEPENCARIAN IS A MATTER OF MALAY CUSTOM AND

APPLICABLE ONLY TO THE CASE OF A DIVORCED SPOUSE WHO
CLAIMS AGAINST THE OTHER SPOUSE DURING HIS OR HER
LIFETIME. THIS RULE OF LAW IS LOCAL LAW WHICH THE
COURT MUST TAKE JUDICIAL NOTICE.
• IT IS THE DUTY OF THE COURT TO PROPOUND IT.”

26
 ROBERT V UMI KALTHUM (1960)
1MLJ 163
• IN THIS CASE, H AND W BOUGHT A HOUSE JOINTLY FOR RM50,000. H
CONTRIBUTED RM40,000 AND WIFE RM10,000 BUT THE HOUSE WAS
REGISTERED UNDER WIFE`S NAME AS H WAS THEN A GOVERNMENT
SERVANT.
• SUBSEQUENTLY THEY DIVORCED AND HUSBAND CLAIMED THE
HOUSE SHOULD BE DIVIDED EQUALLY. WIFE REFUSED. H BROUGHT
AN ACTION IN HIGH COURT.
• HIGHCOURT HELD: PROPERTY WAS JOINTLY ACQUIRED (HARTA
SEPENCARIAN) AND FINALLY BOTH OF THEM AGREED TO DIVIDE
EQUALLY.

27
 AUTHORITY

• AN NISA: 32.

• `TO MEN IS ALLOTED WHAT THEY EARN, AND TO WOMEN

WHAT THEY EARN.’

28
• 1. JOINT EFFORTS PROPERTY

• BOTH HUSBAND AND WIFE WORKS AND BUY IT. THE SHARE WILL BE EQUALLY
DISTRIBUTION ACCORDING TO THEIR CONTRIBUTION. (S. 122 (2)

⮚2. SOLE EFFORTS PROPERTY

• ONLY ONE PARTY ACQUIRED THE PROPERTY. IF WIFE TAKE CARE THE
CHILDREN ETC, THEN COURT WILL CONSIDER HER CONTRIBUTION. ( S. 122 (4)

• WIFE IN THIS CASE WILL GET 1/3 OF THE SHARE. ( DECIDED CASES)

29
 SECTION 122 (2) IFLA (FT)
JOINT EFFORTS

• FACTORS WHICH COURT WILL TAKE INTO ACCOUNTS:

• A) THE EXTENT OF THE CONTRIBUTIONS MADE BY EACH PARTY IN
MONEY, PROPERTY, OR LABOUR TOWARDS ACQUIRING OF THE
ASSETS;
• (B) ANY DEBTS OWING BY EITHER PARTY THAT WERE
CONTRACTED FOR THEIR JOINT BENEFIT; AND
• (C) THE NEED OF THE MINOR CHILDREN OF THE MARRIAGE, IF ANY,
• AND, SUBJECT TO THOSE CONSIDERATIONS, THE COURT SHALL
INCLINE TOWARDS EQUALITY OF DIVISION.

30
 SECTION 122 (3)(4) IFLA (FT)
SOLE EFFORT
• SECTION 122 (3) IFLA (FT THE COURT SHALL HAVE POWER, WHEN PERMITTING THE
PRONOUNCEMENT OF TALAQ OR WHEN MAKING AN ORDER OF DIVORCE, TO ORDER
THE DIVISION BETWEEN THE PARTIES OF ANY ASSETS ACQUIRED DURING THE
MARRIAGE BY THE SOLE EFFORT OF ONE PARTY TO THE MARRIAGE OR THE SALE
OF ANY SUCH ASSETS AND THE DIVISION BETWEEN THE PARTIES OF THE PROCEEDS
OF SALE.

• SECTION 122 (4) IFLA (FT) FACTORS WHICH COURT WILL TAKE INTO ACCOUNTS:
• (A) 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; AND
• (B) THE NEEDS OF THE MINOR CHILDREN OF THE MARRIAGE, IF ANY,

31
SECTION 122 (4) IFLA (FT) CONT…
SOLE EFFORT
• AND,SUBJECT TO THOSE CONSIDERATIONS, THE COURT
MAY DIVIDE THE ASSETS OR THE PROCEEDS OF SALE IN
SUCH PROPORTIONS AS THE COURT THINKS
REASONABLE, BUT IN ANY CASE, THE PARTY BY WHOSE
EFFORTS THE ASSETS WERE ACQUIRED SHALL RECEIVE A
GREATER PROPORTION.

•*COURT WILL DIVIDE REASONABLY BUT THE PERSON

WHO ACQUIRE IT WILL GET MORE.

32
SECTION 122 (5) IFLA (FT)

• ASSETSACQUIRED DURING MARRIAGE INCLUDES THE

ASSETS OWNED BEFORE MARRIAGE BY ONE PARTY THAT
HAVE BEEN SUBSTANTIALLY IMPROVED DURING THE
MARRIAGE BY THE OTHER PARTY OR BY THEIR JOINT
EFFORTS.

33
 BOTO BT. TAHA V JAAFAR B.
MOHD [1985] 2 MLJ 98
• IN 1966 PARTIES MARRIED.HUSBAND WAS A FISH MONGER. WIFE
WORKED AS A COFFEE SHOP ASSISTANT. HUSBAND BUSINESS
PROSPERED. HE BOUGHT LAND, MATRIMONIAL HOME, 4 FISHING
BOATS AND A FISH STALL. IN 1974 THEY DIVORCED AND H ONLY
PAID HER (MAINTENANCE) DURING PERIOD OF IDDAH.
• W APPLIED FOR DIVISION OF JOINTLY ACQUIRED PROPERTY.
• HIGH COURT JUDGE HELD THAT THE FACT THAT W LEFT HER JOB
AFTER MARRIAGE AND ACCOMPANYING THE HUSBAND IN HIS
BUSINESS TRIPS ENTITLE HER FOR THE CLAIM OF JOINT EFFORTS
PROPERTY. THERE IS INDIRECT CONTRIBUTION BY W AND SO 1/3
MUST BE GIVEN TO HER.

34
 MANSYUR B. ABDUL RAHMAN V
KAMARIAH BT. NOORDIN
(1988) 6 JH 289; (1988) 3 MLJ XLIX

• HUSBAND AN INDONESIAN, APPLIED TO DEVELOP GOVERNMENT

LAND IN 1962. HUSBAND WAS GIVEN THE APPROVAL BASED ON HIS
MARRIAGE WITH THE WIFE WHO IS A MALAYSIAN.

• HUSBAND BROUGHT HIS WIFE AND CHILDREN. BOTH OF THEM

WORKED ON THE LAND UNTIL THE HUSBAND DIVORCED THE WIFE.
HUSBAND MARRIED ANOTHER WOMAN. DURING DIVORCE NO
ORDER WAS MADE REGARDING DIVISION OF THE LAND.

35
CONT…
• THE LAND WAS TAKEN OVER FOR A HOUSING PROJECT BY THE
GOVERNMENT AND COMPENSATION WAS PAID TO THE HUSBAND.IT
WAS STIPULATED WHEN THE COMPENSATION WAS PAID IT SHOULD
BE DIVIDED EQUALLY BETWEEN HUSBAND AND WIFE.

• AFTER THE DIVORCE, ONE OF THE CHILDREN STAYED WITH THE

WIFE WHILE THE OTHER FOUR STAYED WITH THE HUSBAND.
HUSBAND OFFERED TO GIVE 2/7 OF THE PROCEEDS TO THE WIFE
AND THE CHILD WITH HER WHILE HE KEPT 5/7 FOR HIMSELF AND
FOUR CHILDREN.

36
CONT…
• WIFE BROUGHT AN ACTION CLAIMING THAT SHE WAS ENTITLED TO ½ (50%) SHARE
IN THE COMPENSATION PAID FOR THE LAND. KADI RULED IN HER FAVOUR AND
ORDERED HUSBAND TO GIVE HALF OF THE COMPENSATION TO THE WIFE.

• HUSBAND APPEALED. APPEAL COMMITTEE REFERED TO HOLY QUR’AN, THE

HADITH, THE TEXT BOOKS SUCH AS AL-UMM, BUGHYATUL MURTASHIDIN, `I`ANAT
AT TALIBIN ETC
• HELD :
• (I) CONFIRMING THE DECISION OF KADI. WHERE PROPERTY OF H & W HAS BEEN
MIXED, THE ONLY SOLUTION IS BOTH MUST TAKE OATH AND THE PROPERTY
MUST BE DIVIDED EQUALLY.

37
 ROKIAH BT. HJ ABD. JALIL V
MOHD IDRIS SHAMSUDDIN (1986 )
6 JH 272
• AFTER DIVORCE, WIFE CLAIMED MATRIMONIAL PROPERTY
• KADI: THE CLAIM FOR HARTA SEPENCARIAN WAS DISMISSED
BECAUSE IT WAS SOLE EFFORT PROPERTY.
• ON APPEAL, COURT HELD: SHE IS ENTITLED FOR HARTA
SEPENCARIAN BECAUSE OF INDIRECT CONTRIBUTION OF THE
WIFE IN LOOKING AFTER THE HOUSEHOLD, THE HUSBAND
AND CHILDREN FOR THE PERIOD OF OVER 35 YEARS OF
MARRIAGE.
• COURT ORDERED 1/3 SHARE BE GIVEN TO WIFE.

38
 TG ANUN ZAHRAH V DATO
HUSSAIN (1980) 3 JH 125
• WIFE CLAIMED HARTA SEPENCARIAN.
• HUSBAND SAID THE PROPERTY WAS SOLE EFFORT.
• HELD THE MORAL SUPPORT GIVEN BY W TO GET DATO IS
CONSIDERED BY COURT.
• THE COURT OBSERVED THAT BY MARRYING THE WIFE, WHO
BELONGED TO THE PAHANG ROYAL FAMILY, & BEING
ACCEPTED BY A RESPECTABLE FAMILY, THE HUSBAND’S
BUSINESS FLOURISHED & HE BECAME A SUCCESSFUL
BUSINESSMAN.
• THE WIFE WAS THEREFORE ENTITLED TO A HALF-SHARE IN A
PIECE OF LAND THAT HAD BEEN ACQUIRED BY THE HUSBAND

39
MOHD AKHIR BIN MAN V NORIAH
BT HUSSIN [2008] 3 SHLR 79
• COURT HELD THAT D’S CONTRIBUTION IN ACQUIRING
THE PROPERTY WAS MORE COMPARED TO THAT OF P.
SHE HAD MADE EFFORT TO PURCHASE THE SAID LAND
VIDE A GOVERNMENT LOAN AND WAS REPAYING THE
LOAN THROUGH HER SALARY DEDUCTION.
• THROUGH THIS EARLY EFFORT THE PARTIES WERE ABLE
TO CONSTRUCT THE HOUSE ON THE SAID LAND.
THEREFORE, IT WOULD ONLY BE FAIR THAT D BE
AWARDED A GREATER SHARE AS COMPARED TO P.

40
 NORIDAH BT AB TALIB V HISHAMUDDIN BIN
JAMALUDDIN [2009] 4 SHLR 115
• P AND D MARRIED IN 1979 AND DIVORCED IN FEB 2003. BEFORE AND DURING THE
MARRIAGE, P WORKED AS A STAFF AT THE ORIENTAL BANK AND WAS EARNING
APPROXIMATELY RM570 PER MONTH.

• HOWEVER, ON THE INSTRUCTION OF D, P RESIGNED IN 1983 FOR THE SAKE OF THE

FAMILY AND CHILDREN. DURING THE MARRIAGE, P AND D BOUGHT FEW ASSETS AND
PROPERTIES AND CONTRIBUTED DIRECTLY AND INDIRECTLY TOWARDS THE
PURCHASE OF THE SAID ASSETS/PROPERTIES

• AFTER THE DIVORCE, P CLAIMED CERTAIN ASSETS/PROPERTIES THAT BELONGED TO

HER AND REGISTERED IN THE NAME OF D TO BE DECLARED AS HARTA SEPENCARIAN
AND TO BE DIVIDED BETWEEN THEM.

• THE ASSETS/PROPERTIES ARE AS FOLLOWS:

• (A) A DOUBLE STOREY HOUSE IN BANDAR BARU BANGI;
• (B) A PROTON SAGA CAR;
• (C) SAVINGS IN THE EMPLOYEE PROVIDENT FUND (‘EPF’); AND
• (D) D’S SAVINGS IN THE LEMBAGA URUSAN DAN TABUNG HAJI.

41
 CONT…
• SHARIAH HIGH COURT (SHAH ALAM) HELD:
• (A) A DOUBLE STOREY HOUSE IN BANDAR BARU BANGI;
• BOTH PARTIES AGREED THAT THE SAID HOUSE WAS A HARTA
SEPENCARIAN WHICH WAS ACQUIRED DURING THEIR MARRIAGE.
• P WAS ENTITLED TO THE HOUSE IN THE RATIO OF 1/3 AND D IN THE
RATIO OF 2/3 ON THE MARKET VALUE, TO BE VALUED BY A CERTIFIED
VALUER, LESS THE NECESSARY COSTS INCLUDING THE BALANCE OF THE
HOUSING LOAN.

• (B) A PROTON SAGA CAR;

• BOTH PARTIES FAILED TO DISCLOSE ANY DOCUMENTS WHICH WERE
RELEVANT AND FAILED TO ADVANCE EXHAUSTIVE EVIDENCE TO ENABLE
THE COURT TO DECLARE THAT THE PROTON SAGA CAR WAS PART OF
THE MATRIMONIAL PROPERTY

42
CONT…
• (C) SAVINGS IN THE EMPLOYEE PROVIDENT FUND (‘EPF’);
• THE SAVINGS IN THE EPF COULD NOT BE REGARDED AS
MATRIMONIAL PROPERTY BY THE INDIRECT CONTRIBUTION, IN
REFERENCE TO THE ORIGINAL CONCEPT OF MATRIMONIAL
PROPERTY.

• (D) D’S SAVINGS IN THE LEMBAGA URUSAN DAN TABUNG HAJI.

• THE SAVINGS IN THE LEMBAGA URUSAN DAN TABUNG HAJI WAS A
PERSONAL SAVINGS AND THERE IS NO PROVISIONS STATING THAT
THE MONEY IN THE SAVINGS COULD BE CATEGORISED AS JOINT
EFFORT AND WAS DEEMED TO BE MATRIMONIAL PROPERTY. THIS
IS DUE TO THE FACT THAT EVERY SAVINGS BELONGS TO THE
INDIVIDUAL.

43
AZIZAH BT MUSA V MOHD KAMAL @
RAJA KUMARAN BIN ABDULLAH [2016] 3
SHLR 8
• P AND D MARRIED IN 1981 AND DIVORCED IN MARCH 2005. DURING THE
DIVORCE, THERE WAS NO AGREEMENT BETWEEN THE PARTIES ON THE
MATRIMONIAL PROPERTY.
• P CLAIMED FOR A HOUSE IN TAMAN DESA SERDANG TO BE DECLARED AS
MATRIMONIAL PROPERTY (ASSET 1).
• D COUNTERCLAIMED AND CLAIMED A HOUSE IN RAWANG (ASSET 2) AND A
KANCIL VEHICLE (TAA 5920) (ASSET 3) TO BE DECLARED AS MATRIMONIAL
PROPERTY.
• HELD: (I) ASSET 1-REGISTERED IN 1994, MATRIMONIAL PROPERTY. DIRECT
CONTRIBUTION BY D WAS PAYMENT OF MONTHLY LOAN, P CONTRIBUTED TO
RENOVATION OF RM 12,000 AND INDIRECT CONTRIBUTION AS A HOUSEWIFE.
• (D’S CONTRIBUTION WAS DOMINANT IN THE DEVELOPMENT OF THE PROPERTY:
COURT DIVIDED 30% TO P AND 70% TO D.

44
CONT…
• ASSET2, D FAILED TO PROVE THE SAID PROPERTY WAS
MATRIMONIAL PROPERTY AS D FAILED TO PROVE THE
ACQUISITION OF THE SAME AND HIS CONTRIBUTION TO IT.

• ASSET 3, DIRECT CONTRIBUTION OF D WAS THE PURCHASE

AND PAYMENT OF THE MONTHLY LOAN UNTIL COMPLETION.
P INDIRECT CONTRIBUTION AS A WIFE.
• (D’S CONTRIBUTION LEANED ON TOWARDS ACQUIRING THE
MATRIMONIAL PROPERTY: COURT ORDERED P TO RECEIVE
15% AND D RECEIVED 85% OF THE MATRIMONIAL PROPERTY)

45
• RIGHTS FOR HARTA SEPENCARIAN ARISE WHEN THERE
IS A DIVORCE OR DEATH OF EITHER PARTY TO THE
MARIAGE.

• HOWEVER, ACCORDING TO ARAHAN AMALAN NO. 14, YEAR

2006
• “..THATTHE JURISDICTION TO HEAR THE CASES OF
POLYGAMY AND DECLARATION OF DIVISION OF HARTA
SEPENCARIAN AND OTHER RELATED MATTER UNDER
SECTION 23 OF ISLAMIC FAMILY LAW
ACT/ENACTMENT/ORDINANCE IN ALL STATES SHALL BE
HEARD IN SYARIAH HIGH COURT”.

46
• SECTION 23 (9) OF IFLA (FT):
• EVERY COURT THAT GRANTS THE PERMISSION OR ORDERS A
MARRIAGE TO BE REGISTERED UNDER THIS SECTION SHALL
HAVE THE POWER ON THE APPLICATION BY ANY PARTY TO THE
MARRIAGE:
• TO REQUIRE A PERSON TO PAY MAINTENANCE TO HIS EXISTING
WIFE OR WIVES; OR
• TO ORDER THE DIVISION BETWEEN THE PARTIES OF THE
MARRIAGE OF ANY ASSETS ACQUIRED BY THEM DURING THE
MARRIAGE BY THEIR JOINT EFFORT OR THE SALE OF ANY SUCH
ASSETS AND THE DIVISION OF THE PROCEEDS OF THE SALE.

47
• DISTRIBUTION OF PROPERTY ON DIVORCE
UNDER ADAT PERPATIH
48
 INTRODUCTION
• IN THE PARTS OF NEGERI SEMBILAN AND OF MELAKA WHERE
MATRIARCHAL ADAT PEPATIH IS FOLLOWED, DISTRIBUTION OF PROPERTY
ON DIVORCE FOLLOWS THE ADAT OR CUSTOMARY LAW.
• THREE TYPES OF MARRIAGE PROPERTY:
• I) HARTA CARIAN – PROPERTY ACQUIRED DURING WEDLOCK SUCH AS RUBBER
ESTATE, HERD OF HUSBANDRY, JOINT SAVINGS OR RICE CROP

• II) HARTA PEMBAWA- PROPERTY THAT HUSBAND BROUGHT AT THE TIME OF

THE MARRIAGE

• III) HARTA DAPATAN- PROPERTY WHICH BELONGS TO THE WIFE AT THE TIME
OF MARRIAGE

49
• EFFECTS:THE PROPERTY WITH WHICH THE MARRIAGE
COMMENCED MUST BE RESTORED OR MADE GOOD TO THE
RESPECTIVE PARTIES:
• DAPATAN TINGGAL – WIFE SEPARATE PROPERTY REMAINS
WITH HER OR HER TRIBE
• PEMBAWA KEMBALEK –PERSONAL ESTATE BROUGHT BY THE
MAN WILL RETURN TO HIM.
• CARIAN LAKI BINI (PROPERTY ACQUIRED BY JOINT EFFORTS OF
THE MARRIED COUPLE) IS DIVIDED EQUALLY ON DIVORCE
BETWEEN HUSBAND AND WIFE IRRESPECTIVE OF WHO IS TO
BLAME FOR THE DIVORCE.

50
• UNDER CUSTOMARY LAW, THE CHILDREN REMAIN WITH
MOTHER ON DIVORCE. IT IS USUAL FOR THE FATHER TO
AGREE TO GIVE PART OF HIS SHARE TO HIS CHILDREN

• THERE IS AN EXCEPTION TO THE RULE OF EQUAL

DIVISION ON DIVORCE; IN THE CASE OF CERAI TA’LIQ, THE
WIFE RETAINS THE WHOLE OF THE PROPERTY.
(CUSTOMARY LAW OF REMBAU)

51
52