The Legal Recognition of a Wife’s Rights of Harta Sepencharian in Malaysia

Introduction

Malaysia is a modern Muslim country in Southeast Asia; 60% of the population is Muslim amidst a significant minority of other faiths and ethnicities (Malaysian Population Census, 2000). By law, all Malays are Muslim. Ethnic Malays in Malaysia first adopted Islam in the 11th century, where it was syncretized and embedded into an indigenous cultural system described as “adat.” Gradually, Islamic religious symbols have taken over the traditional Malay culture and lifestyle as well (Haque, 2003).

After the fall of Malacca in 1511, Malaysia was subsequently colonized by several Western powers, with the British Empire being the last and longest European superpower to govern the nation. With regard to modern Western-style governance, Malaysia prepared to establish a democratic system by means of its first election held in 1955 (Andaya & Andaya, 2001). The nation further progressed into and embraced an adapted version of what Foley (2004) defines as a “neither fully democratic nor fully authoritarian” governance system. It is interesting to note that in Muslim societies, such as Malaysia, Muslim women have always been a major player in many sectors.

Methodology

This is a qualitative research paper that involved library research and case study methods to show the practice of jointly acquired property apportionment and the acknowledgment of the Syariah Court toward wives’ rights and contribution to jointly acquired property based on Malaysian current law. Documentary research is used to analyze the theory behind the jointly acquired property based on the available literature that has been identified and its relevance to this study. Books, journals, and legal statutes are some examples of the primary and secondary sources used for data collection. These are then used to further analyze the concept of jointly acquired property and current related laws. The case study method is used to study the judgment from the court on the property apportionment rate of jointly acquired property in Malaysia. To ensure that the data obtained are accurate, references on judgment of cases by the Syariah Court have to be made. Content analysis is used to examine the discussion on contributions and their relationship to the apportionment rate of jointly acquired property. This method is then used as a basis to reconcile court judgments on wives’rights and contributions to the apportionment of jointly acquired property from a legal perspective.

Muslim Women in Malaysia: A Brief Analysis

Before the arrival of the Western powers, the Malay Muslim Sultanate in Melaka governed a territory from Southern Thailand in the North, to the Sumatran Island and the Eastern Coast of Indonesia in the South. During these feudal times, the Malays were mainly divided into two groups: the ruling elite/aristocracy and the peasantry (Ariffin, 2000).

Looking back to Malaya, in the 18th and early part of the 19th centuries, when British economic influence, this not only effectively marginalized Malay's agricultural development but also successfully divided Malaya into rural and urban areas. The main reason behind the presumed “inactivity” and “passive” Malay women, whose contribution to the national economy was insufficiently recognized, despite some who were significantly involved in their work while gainfully employed (Ariffin, 2000).

In earlier times, women and men worked together in agricultural fields as planters, rice cultivators, rubber tappers, or processed seafood producers. They were also involved in trading activities, especially on the East Coast of Peninsular Malaysia. Early history showed that women had to involve themselves and contribute economically as diligently as men, especially in the household economy (Seif Hatimy, 1979). Further observes, “Although these women have played an important role in economic development, their main duties are to look after their children and running the home” (Firth, 1966). The married relationship requires both women and men to work together economically in order to sustain the marriage (Mustaphar, Azahari, & Ahmad, 2020).

After Malaysia gained independence in 1957, more opportunities became available to women, especially in education and employment. Post-independence women, irrespective of their ethnicity, were well equipped with education and training to face the challenges and contributions toward an economically developing society. Women were no longer confined to the agricultural sector. With the restructuring of the education system, more women have been educated. For example, in 1957 (the year of Independence), statistics show that 42.6% of pupils at Malay medium schools were women, while 38.85% of school-going children at English medium schools were women (Ariffin, 2000). The nation’s economic development and the shift of emphasis from primary to secondary industries had widened the range of opportunities and also generated diverse employment prospects for women (Omar, 1994).

Muslim Women and Property Ownership

During the Greco-Roman period, women were treated as second-class citizens. Unfortunately, this was also true for both Eastern and Western women (Rowbatham, 1975). Such practices are still prevalent in many parts of the world, such as India (Al-Tekar, 1973), Europe (Oakley, 1982) and the Middle East (Hatimy, 1979).

In Malaysia, according to the common law, a married woman was not entitled to possess property, but the husband was. However, this situation changed with the advent of Islam, which teaches gender equality among human beings. Islam teaches that there are no gender differences that support discrimination (Rauf, 1979). Islam is very clear about women’s rights in their daily lives (Sahid, Gunardi, & Zahalin, 2020). For example, equality between men and women is mentioned in Surah (Chapter) Al-Hujurat verse 19, and the other teachings of Islam brought by the Prophet Muhammad (sallAllahu alayhi wasallam) who also stated this.

In the modern context, women’s roles are no longer limited to household management, but also include other aspects of community development (Ibrahim, 2002). This has been further supported by the announcement of the International Women’s Year recognized by the United Nations Organization in 1975 (Ismail & Mahbar, 1996). This declaration opened a new chapter in the history of women in global development, including Malaysia, where women were generally given the same rights and roles in the development of home economics as well as the economy of the states.

Despite historical episodes of discrimination, the 20th century attempted to remedy this problem. Article (1) of the Universal Declaration of Human Rights states that, “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act toward one another in a spirit of brotherhood.” The UN General Assembly adopted the Universal Declaration of Human Rights (1948), which guarantees equal rights to both sexes. Consequently, in 1979, the UN General Assembly adopted the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which came into force in 1981.

Malaysia is also a signatory to the CEDAW. Article 8 (2) of the Federal Constitution of Malaysia states clearly that matters that discriminate on the basis of gender should never occur. This provision emphasized that rights for men and women were seen as symmetrical with the requisition of Islam, where women are allowed to be parties to contractual arrangements (Buang, 2001).

The Malay community’s rituals vary from one area to another. However, in terms of property ownership and gender issues, Malay society is very women-friendly (Hussin & Abdullah, 2016). Moreover, the gender of a newborn baby has never been an issue because, in the Malay community, the birth of any child is considered a blessing from God (Mamat, 1991). Normally, sons and daughters undergo different processes of socialization according to their respective roles. Upon this awareness, similar rights were given to women regarding ownership of property, including matrimonial property, after they got married (Abdullah, Martinez, & Radzi, 2010).

This custom is also supported by the recognition of the distribution of matrimonial property after a divorce, which is known as Harta Sepencharian (Ahmad, 2021). The Perak State Council Minute, dated January 18, 1907, declared that the custom of the Malays of Perak in the matter of dividing up property after divorce, when such property has been acquired by the parties, or by one of them during marriage, is to adopt the proportion of two shares to the man and one share to the woman and that gifts between married persons are irrevocable either during marriage or after divorce. (Taylor, 1937)

This declaration shows that customary law is applied with respect to the distribution of property acquired during the subsistence of marriage.

The Concept

The division of Harta Sepencharian upon divorce is a unique and long-term practice in the Malay Archipelago (Mabry, 1998). It can be defined as a property that is jointly acquired during marriage. The practice of distributing jointly acquired property stems from mutual respect between husbands and wives during marriage (Suwaid, 2001). This practice recognizes the importance of sharing elements of property acquired during marriage, acknowledging the significant contributions of both parties. Any property acquired before marriage or property inherited by a party should not be construed as a Harta Sepencharian asset, even though acquired during marriage (Aziz, Ibrahim, & Hussin, 2019). Nevertheless, the original property owned by any one party, then expanded during the marriage such as both husband and wife working together in farming, animal breeding, business enterprise, investing, and so forth, can be regarded as joint efforts or Harta Sepencharian assets (Tapah, 2003).

Many local scholars have asserted that Harta Sepencharian developed from customary traditions, but there has also been an effort to bring such property under the jurisdiction of Islamic Law. However, a careful examination reveals that the works of classical Muslim jurists do not directly address the idea of Harta Sepencharian (Robbi & Mahmud, 2020). Others use the term “al-mal zawjayn,” which refers to the husband and wife’s property, while some relate it to mata al-bayt, such as household appliances (Ibrahim, 2007). Imam al-Shāfi‘ī, a traditional Muslim jurist, declared the following:

When there is a dispute between a man and a woman over household items and equipment where both of them live in that house because they are separated (divorced), or even not separated, or both the husband and wife died, and there is a dispute between heirs to both parties or dispute between heirs to one of the two parties; then all solutions are similar... (Al-Shafi‘i, 1996)

Discussions of classical Muslim jurists related to matrimonial property disputes can be summarized into three main themes:

i. The question related to the nature of the property in dispute (al-Shāfi‘ī, 1996)

The properties that were discussed in the argument of scholars cover traditional home appliances, which are frequently used by either the husband or the wife. They include cooking utensils, jewelry, swords, and weaponry, as well as other equipment that are commonly used in households. This is appropriate for that period because there was no complex property as it exists in today’s world.

ii. Method of settlement

Most scholars have also focused on the method of settlement by examining the routines of appliances used. This means that if the equipment is typically used by women, such as cooking utensils, they would naturally become hers. Similarly, if the equipment in question is typically used by men, such as a sword or war equipment, then these items would become the property of the man. However, there is difficulty in using this method, especially when it involves equipment or property that is used for mutual interest, and this is the subject of the third argument with regard to matrimonial property in the books of classical Islamic Jurisprudent (Fiqh) (Hanbal, 1930).

iii. Property which is used for mutual interest

The third argument is the focus in classical Islamic jurisprudential books (Fiqh), which is about properties used for mutual interest. Some scholars tend to distribute property to men, whereas others tend to divide assets equally between men and women. For example, Imam Abu Yusuf had a simple view of the issue by asserting that women should be given what they deserved in accordance with the balance given back to the man.

It is clear that discussions in the classical Islamic jurisprudential texts are confined to property, which by its nature are more “domestic,” such as household appliances, war equipment, gardening tools, vehicles, etc. (Sarakhsi, 2001). Discussions that involve the settlement of disputed property are also quite “biased” towards men, such that assets of mutual interests are often granted to them. However, various views of Islamic scholars certainly differ from the realities of matrimonial properties as practiced in Malaysia. Today, Harta Sepencharian disputes involve issues of complex properties and lengthy trials in their distribution, such as investments, bonds, movable and immovable properties (Mohd & Mohd, 1998).

The position of Harta Sepencharian under Islamic law can be demonstrated through the concepts of “al-sharikah” (Mohd & Mohd, 1998) and “urf” (customs). However, many scholars believe that Harta Sepencharian is a concept understood through uruf (customary law) (Zainon, Bakar, Zaghioui, & Urus, 2021). This is a result of the practice of dividing Harta Sepencharian, which exists only in the customary practices of the Malay community in Malaysia and in other neighboring countries such as Indonesia, Brunei, Singapore, Southern Thailand, and the southern Philippines.

Islam recognizes that such customs, either specific or general, can be adopted as a source of Muslim Family Law in Malaysia. This shows that Muslims celebrate customs practiced in certain areas as long as they do not conflict with Shari’ah. As we know, the influence of Islam within Malay families is well-developed (Abdullah, 2007). Even Western colonization was unable to alter family matters in the Malay community (Abdullah, 2007). Their own legislative history shows the far reaching influence the Prophet Muhammad (sallAllahu alayhi wasallam) had when he was faced with negotiating (legally) around customs (‘urf). Prophet Muhammad (sallAllahu alayhi wasallam) took a different attitude toward issues of whether to accept, reject, or amend customs into laws. When a custom proved beneficial, its status changed to law or a regulation that must be enforced. In addition, the jurisprudence method that states “al-‘adah al-muḥakkamah” (Sayuti, 1983), which means cultural usage shall have the weight of law, also secures the legal conception of matrimonial property in Shari’ah. Based on this legal maxim, the Muslim Family Law in Malaysia has provided that a divorced wife holds rights to claim the division of Harta Sepencharian together with other financial rights after divorce, such as nafqah (financial support) and mut’ah (alimony) (Hussin & Abdullah, 2016).

The concept of Harta Sepencharian as based on customary law is also upheld by the court in the case of Roberts v. Umi Kalthom, 1 MLJ 163 (1966), where Shah (as he was then) mentioned that

A principle gleaned from these cases established that Harta Sepencharian is a matter of Malay 'adat and is 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 and it is the duty of the court to propound it: see Ramah v. Laton, supra. In the face of the compelling authorities above, I am of the view that once it is clearly established that property was acquired subsequent to the marriage out of their joint resources or by their joint efforts, a presumption arises that it is Harta Sepencharian...

As far as Harta Sepencharian is concerned, it is clear that the Malay custom is not only consistent with the Shari’ah, but also brings justice and guarantees the ownership of property acquired during marriage, equally to both the husband and wife (Zainon et al., 2021). This Malay custom has improved the status of women with regard to their rights to own property and is clearly in line with Islamic teachings that do not discriminate against people in regard to their possession of property regardless of gender, ethnicity, and skin color (Ibrahim & Ismail, 2018).

The Distribution of Harta Sepencharian

The practice of Harta Sepencharian represents indigenous customs, with respect for distribution efforts and ownership of property within the marriage (Tapah, 2003). The Malay community has long held the belief that a housewife is entitled to one-third of the assets the husband acquires throughout the marriage, as compensation for her family support. In Mansyur v. Kamariah and Rokiah v. M. Idris, when it was stated that domestic activities were not included in a wife's marital responsibilities under Malaysian Muslim Family Law, it was determined that such a contribution was in compliance with the principles of Shari'ah.

Harta Sepencharian, a term that originated from the matrilineal system of the State of Negeri Sembilan, is also known in Indonesia as carian laki bini (Abdullah et al., 2010). As we know, Malay women in Malaysia in particular and in the archipelago generally play a considerable role in the development of home economics. Their role is not only limited to that of housewives, but extends to other tasks in society as well. This situation is not a new culture norm but has been passed down since ancient times. Their participation may be due to their right to own property, which is also a part of Malay customs (Ariffin, 1992).

Furthermore, Malay women in the archipelago have traditionally engaged in work alongside men in agriculture and markets since the advent of colonialism (Reid, 1988). Munshi Abdullah (1796-1854) described the women of Kelantan (one of the Malaysian states situated along the East Coast) who had been in business at markets:

So when it is in the afternoon, then we see hundreds of women walk down the road. Then, there is a deep conviction present for each one to contribute something to the market basket. So, food is carried with baskets, and the foods are fresh vegetables and bananas, sugar cane, and all sorts of herbs and others. (Ahmad, 1981)

In addition, women were assisting their husbands in agriculture, particularly in rice fields (Maila, 1996). These circumstances can be examined in the testimony given by his son Muhammad Munshi (1840M–1904M). He detailed women's contributions to agriculture:

Sowing seeds, transforming, weaving, punching, kicking, harvesting, sweeping, and cooking. Collecting, picking, sifting, rolling, deeply, cutting, binding, and so forth. (Othman, 1980)

Women were also engaged in rubber tapping (Abdullah et al., 2010), poultry farming (Swift, 1965) and so forth. In short, most women in Malaysia hold dual roles in the household and business sectors of the economy to generate income. In Malaysia, women play multiple roles in both the domestic and non-domestic sectors. The participation of women in particular sectors qualified them to obtain rights to property acquired during marriage (Ariffin, 2000). Even so, the function and involvement of women clearly changed following their independence. Today, however, the involvement of women in the economic sectors is higher due to more employment and better educational opportunities and policies. These factors have already qualified Malaysian women to obtain rights to Harta Sepencharian as a result of their contributions to property acquisition. These rights have been acknowledged under Muslim Family Law and enforced in Malaysia.

The court also considers the parties’ earlier contributions when deciding how to divide the property. Direct contributions are also referred to as “joint contributions” when both partners have made financial contributions to the purchase of property. In other words, direct contribution happens when a husband and wife collaborate to acquire ownership of a piece of property or another asset, such as a house or a piece of land (Rabi’ah, 2021).

Indirect contributions focus on the housewife, whose tasks are household chores such as managing the household, taking care of their children, and so forth. This leads to women have little chance of getting money or property to buy assets during marriage. Therefore, any claims for Harta Sepencharian presented to the court must be proved according to three elements:

• (i) Property or capital accumulation
• (ii) Efforts toward improving existing assets
• (iii) Other contributions such as views, advice, and encouragement.

Recent Developments

The provision of Harta Sepencharian under the Muslim Family Law in Malaysia has undergone progressive transformation in the country’s legal system. This began with the absence of a specific jurisdiction of the Shari’ah Court, in which the trial could be conducted at the Civil High Court, until the 1988 Malaysian Constitutional amendment of Article 121 (1A). The effect of this amendment was that the Civil Court no longer had jurisdiction to hear Islamic matters, including the claims of Harta Sepencharian (Hussin & Daud, 2020).

Recent developments of Harta Sepencharian were also included in the new amendment of Act A1261 of the Muslim Family Law (Federal Territories) (Amendment) Act 2006. In this amendment, the application for the concept of division of matrimonial property was opened in a wider context, addressing not only property decided upon divorce but also heard and decided by the Shari’ah Court in the event where the husband applied to contract a polygamous marriage (Yusoff, Tajul Urus, Yusoff, Md Thahir, Othman, Mohd Zainon, 2021).

The Muslim Family Law in Malaysia provides that no man may contract an additional marriage unless with prior permission from the Shari’ah Court. Before the Court grants or rejects any application, the it will normally summon the existing wife to testify. If the Court allows the polygamous marriage, then it must make an order in advance on the division of Harta Sepencharian between the husband and the existing wife. The objective of this new amendment is to protect the existing wife’s rights to Harta Sepencharian in polygamous marriages (Abdullah, Abdullah, & Ferdousi, 2015).

Such a provision is seen as protecting the existing wife and her rights to the Harta Sepencharian acquired during marriage (Sahari, Manan, Saidon, & Ishak, 2022). The law acknowledges the existing wife’s contribution to acquiring property. Moreover, if the wife does not contribute any capital, but instead contributes her time and energy to the welfare of the family, the time or duration of contributions is certainly longer than that of her husband’s new wife (Rauf, 1997).

If these provisions are not met, the second wife of the husband will likely submit a claim for matrimonial assets and will face the Shari’ah justice system in determining marital property rights in particular, in terms of the timing or duration of the marriage that allows the husband to acquire property, either at the beginning of the marriage with the first or second wife. For example, in the case of Azizah Yazan v. Norazizi Kassim, (Case Number:05100-017-0198-2007) at the Seremban Shari’ah High Court,the defendant asked for polygamous marriage. The plaintiff (existing wife) filed a Harta Sepencharian appeal for a house at the address of No. 44, Jalan TTJS 3/5, Taman Tuanku Jaafar, 71450 Seremban, and Negeri Sembilan. Both the husband and wife purchased the property during their marriage. The case was settled through a settlement in which the defendant agreed to hand over the house to the plaintiff (existing wife) because they agreed that the property was acquired during their marriage and treated it as a matrimonial asset.

With this amendment, the Muslim Family Law in Malaysia provides that the division of Harta Sepencharian can be claimed in three circumstances:

• (i) Upon divorce
• (ii) Upon the death of either the husband or the wife
• (iii) When the court has allowed the application of the polygamous husband.

Analysis of the Harta Sepencharian Cases in the Malaysian Shari’ah Court

Under Muslim Family Law in Malaysia, all cases of Harta Sepencharian are to be initiated at the State Shari’ah High Court. Judgments of property cases are adjudicated by judges with discretionary power. There are various Harta Sepencharian cases where judgment is based on facts and evidence in court cases, as well as on the guidelines of the Malaysian Shari’ah Judiciary Department. In general, the solution is dependent on the desire of the parties and at the discretion of the judge who attempts to implement an amicable approach.

Conclusion

It is clear from the discussion that the division of Harta Sepencharian in the Shari’ah Court of Malaysia shows that legal protection is extended to Malay Muslim women as well as men. Contributions made by women in possession of property should not be underestimated because they certainly contribute to the stability of the household economy and serve as catalysts for the acquisition of property during marriage. The Harta Sepencharian cases tried in the Shari’ah Court of Malaysia are a manifestation of the recognition of the contribution of Malay women. Divisions of property ordered by the court are subject to the discretion of the parties if a case can be resolved through an agreement process (sulh), as well as the discretion of the court upon arriving at the extent of contributions made by both parties, which have been enacted by Muslim Family Law enforced in respective states.

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