Shariah Compliance in Fair Distribution of Matrimonial Asset

Abstract

The divorced spouse often face obstacle in distribution of matrimonial asset especially in determining a fair portion of share of the asset. The problems in managing the dispute of dividing the asset caused delay and prolonged litigation process. Thus, to safeguard the interest of the parties in the marriage, Malaysian family law for Muslim regulates the right for the divorced wife to apply for division of matrimonial assets where it regulates criteria in division of the assets. Thus, the study is undertaken to investigate the effective law in dividing the assets through court practices. For that purpose, a case study was designed by using a qualitative method where analysis was conducted on a careful selected sampling of 215 unreported cases within the time frame of 2000–2012 collected from six zones representing Shariah Courts in Malaysia where analysis is made based on several variables such as mode of division, scope of matrimonial asset, elements of consideration, and proportion of share. Based on that sampling, it has been discovered that contribution remains as a sole criteria used by the court to ascertain the proportion of share to parties. Thus, this study suggests that the court should use more generalized considerations in determining the proportion when dealing with the division of matrimonial assets after divorce to prevent a costly and lengthy litigation process and to ensure fair distribution is conducted by the court. There is a need for a reform of provision to consider other factors too other than contribution as sole determinant in division.