This article tackles the way property is divided on divorce according to Islamic Family Laws, a key issue for many Muslim families.
Section 58 of The Islamic Law (Federal Territory) Act and Rules 1984 (Amended 1994) states the following:
58 (1) The Court shall have power, when permitting the pronouncement of talaq (divorce by way of word of mouth) or when making an order of divorce, to order the division of any assets acquired by the parties during the marriage by their joint efforts or the sale of any such assets and the division between the parties of the proceeds of sale.
58 (2) In exercising the power conferred by subsection (1) the Court shall have regard to:
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 the joint benefit;
the needs of minor children of the marriage, if any, and subject to those considerations, the Court shall incline towards equality of division.
58 (3) 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.
58 (4) In exercising the power conferred by subsection (3), the Court shall have regard to:
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.
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 where acquired shall receive a greater proportion.
58 (5) For the purpose of this section, references to assets acquired during a marriage include assets owned before the marriage by one party that has been substantially improved during the marriage by the other party by their joint efforts.
In addition, the Syariah Law also recognises the contribution of wives towards the acquirement of matrimonial property in the form of moral support and effort.
There are many cases where the spouse doesn't make any financial contribution towards the purchase of the property.
Her husband may purchase the property while she takes care of the household expenses and the cost of her children’s education. Thus, her invaluable contribution towards the family expenses has allowed her husband to use his income to purchase property. Thus, by taking care of the household expenses, she has morally supported her husband in acquiring the property.
An example is the Felda Land Scheme run by the government. In this instance, the husband toils and works on the land allotted to him to plant rubber or oil palm. His wife stays at home and looks after the household. Her indirect contribution in efforts and moral support will be considered by the Syariah Court when the couple files for a divorce. The wife would normally be entitled to a certain proportion of the property which was acquired by her husband during their marriage.
The Syariah Court also has the power to order for the sale of any property acquired during the marriage. The sales proceeds is divided between the parties based on the direct or indirect contributions of each party towards the purchase of the property. Thus, the rights of Muslim women on matrimonial property is never ignored by the Syariah Laws.
In cases where the husband has assets and properties, the wife should file a claim to the Syariah Courts for the division of matrimonial property. This should be done regardless of whether she has made a financial contribution towards the purchase of the properties. However, her chance to win a greater proportion of the assets or the sales proceeds is stronger if she has contributed financially.
Being the Plaintiff, she could draft a Statement of Claim with supporting documentary evidence containing facts and figures and file it at the Courts Registry. During the trial, she has to testify on oath about her contributions whether financially or in efforts which enabled her husband to acquire the property in question during their period of marriage. If her contribution is solely based on efforts and moral support, it is important for her to produce witnesses to support her claim in Court.
In cases where the wife has made a financial contribution in acquiring the property, she ought to produce documentary evidence such as the sale and purchase agreement and the bank loan agreement, and other relevant receipts pertaining to any money spent on the property.
Thus, in order to succeed in her claim, she must satisfy the Court that she has made certain contributions to the purchase of the assets and property during her period of marriage, be it in effort, moral support or money, whether directly or indirectly.
Based on reported cases, almost all divorced women succeeded in their claims for the division of matrimonial property or the proceeds of sale of such property and assets.
My advice to divorced Muslim women who received nothing on the property and assets acquired during their period of marriage is to file for an injunction on the property.
Section 106 of The Islamic Family Law Act 1984 provides as follows:
any matrimonial proceeding is pending; or
an order has been made under section 56, 59 or 73 and has not been revoked; or
maintenance is payable under any agreement to or for the benefit of a wife or former wife or child;
the Court shall have power on application:
i. If it is satisfied that any disposition of property has been made by the husband or former husband or parent of the person by or on whose behalf the application is made, within the preceding three years, with the object on the part of the person making the disposition of reducing his or her means to pay maintenance or his means to pay muta'ah (consolatory gift) or of depriving his wife of any rights in relation to the property, subject to subsection (2), to require the person making the disposition to revoke the same; and
ii. If is it satisfied that any disposition of property is intended to be made with any object, to grant an injunction preventing the disposition. Disposition here would include a sale, gift, lease, mortgage, or any other transaction whereby ownership or possession of the property is transferred or encumbered but does not include a disposition made for money or money's worth to or in favour of a person acting in good faith and in ignorance of the object with which the disposition is made. Property includes money.
iii. Failure to comply with an order made under this section shall be punishable as a contempt of court.
In addition to that stated above, the wife could also file a cavaet (freezing order) at the relevant Land Office, to prevent the husband from disposing his property before a judgment is obtained from the Syariah Courts which may take a long time for the trial to be completed.
This is to ensure that the wife will not be facing any difficulties when she reclaims her share of the property or proceeds of sale after the Court's judgment.