Division of harta sepencarian in the Malaysian Syariah Courts :an analysis of the judicial approaches

Abstract

Division of matrimonial assets is often associated with unfairness to the parties due to the failure of the existing provision to provide appropriate and fair methods to be used in the division. The current provision does not appear practical as it causes the court to adopt different interpretations in ascertaining allocated shares to the parties involved. The Malaysian family law for Muslim regulates, among others, the right for the husband and wife to apply for division of matrimonial assets which is normally claimable after the divorce or death of a spouse including during polygamous marriage. This provision aims to protect the interest of the wife and children. Thus, this study is undertaken to examine the effectiveness of the law in dividing assets through court practices. For that purpose, the study adopts a qualitative method by using both library research and field work to collect data. The analysis was conducted on a carefully selected sample of 215 decided cases within the period of 2000-2012. Data were collected from six zones representing Syariah Courts in Malaysia. Data were analysed based on several variables such as types of matrimonial property, factors for consideration and proportion of distribution of assets. The sampling shows that the direction of provision emphasises the contribution of a spouse as the sole determinator when dividing the assets thus, causing uncertainty and encouraging litigation. The study discloses that a loose draft of the provisions has caused various discrepancies in applying the law into practice. Other problems include the ambiguity in defining the scope of matrimonial assets and the role of the homemaker which has also not been properly addressed. Thus, this study suggests that the courts adopt more discretion when dealing with a division and take into account general considerations and factors including length of marriage, welfare of parties and other forms of contributions other than that of financial aspects. The use of sulh as a mode of dividing matrimonial asset is suggested to be widely practised when dealing with the division of matrimonial assets to prevent a costly and lengthy litigation process. Serious attention should, therefore, be given to reform the existing provision in order to make possible a just and equitable division of matrimonial assets.