The aim of this paper is to assess the position of custom within Islamic law and how the customs of the Malays or, to be precise, the adat of harta sepencarian (the custom of division of matrimonial properties) had begun to take place within legal discussion among British judges and scholars during the time of British Malaya, and the development of the concept of harta sepencarian law under Islamic family law to date. The evolution of the legal process that validates and promotes harta sepencarian – an adat law as a part of Islamic principle – signifies the dynamism of Islamic law that accommodates changing time, region and culture so as to fulfill the public interest. Both the husband and wife undertake their own roles and efforts in acquiring properties during their marriage, and their contributions may be either direct or indirect. A wife who has given up her career to focus her time and efforts on the family, fulfilling her duties as both a wife and a mother, raising the children, should be protected by the law. Despite positive development of the harta sepencarian law within existing Islamic family law in Malaysia, there remains a void that may prove disadvantageous to Muslim women when their husbands enter into polygamous marriage without the permission of the Syariah Court outside their jurisdiction, raising the possibility of her losing her share of the matrimonial assets when the husband transfers his property to the third party, a new wife.
Volume 11 | 07-Special Issue
Pages: 1834-1842