NAT v DAT [2019] 4 SHLR 31

Syariah High Court (Shah Alam)

Matrimonial property

1.  The Plaintiff and Defendant were married on 30 April 1996 but unfortunately had been divorced on 8 May 2014. They were divorced outside the court without court’s permission. The divorce was then validated by the Syariah Subordinate Court of Hulu Langat, Selangor Darul Ehsan (SSC). From their marriage, the parties were blessed with two children.

2. The Plaintiff made claims at the Syariah High Court, Shah Alam (SHC) for matrimonial property (harta sepencarian) involving immovable and movable properties as follows:

(a)         A house located in Hulu Langat, Selangor Darul Ehsan; and

(b)         Two cars, Proton Saga 1.3 and Proton Perdana 2.0 SEI.

3. The Defendant, in his defense and counterclaim,  has sought for the properties to be declared as matrimonial  properties together with other items such as goods, electrical appliances, household furniture, and other items, to be legally recognized as belonging entirely to the Defendant with complete transfer of ownership.

4. This case seeks to claim matrimonial property acquired by Plaintiff and Defendant under the provision of subsection 122(1) of the Islamic Family Law (State of Selangor) (Enactment No. 2 of 2003).

2.    The Plaintiff’s portion regarding of the property claim

(a) The Plaintiff in this case filed this matrimonial property claim after the first divorce with the Defendant on 8 May 2014.  This claim was made in relation to properties acquired by both of them during the marriage period since their marriage on 30 April 1996.

(b) Islamic Law recognizes matrimonial property as assets acquired through the efforts of both spouses. This is supported by the words of Allah SWT in Surah Al-Nisa’, verse 32.

(c) Matrimonial property is governed by the conditions set out in section 2 of the Enactment No. 2 of 2003.

(d) SHC stated that it is the responsibility of Plaintiff to establish that the properties were acquired through their own contributions, in order for the Court to render a judgment in this matter as sought by Plaintiff.

(e) SHC stated that matrimonial property can exist in three circumstances as follows:

(i) Property jointly acquired by the husband and wife during the marriage, in accordance with Islamic law, through their joint efforts;

(ii) Property jointly acquired by the husband and wife during the marriage, in accordance with Islamic law, through the sole efforts of one spouse; or

(iii) Assets owned by one spouse before the marriage, but significantly increased during the marriage, in accordance with Islamic law, either by the individual spouse or through joint efforts.

(f) This claim for matrimonial property can be made regardless of whether the property or asset in question is registered under the name of party or not. SHC referred to  Al-Turuq Al-Hukmiyyah Fi Al-Siasah Al-Syar’iyyah, page 30, by Ibn Qayyim Al-Juziyyah which mentioned that-

“Among the opinions of Islamic jurists is the consensus that in cases of claims between spouses who both contributed to acquiring household and business assets, such claims should be accepted based on evidence that supports the claim. In this matter, ownership of property is not determined solely by the name listed on the asset. The mere presence of a name on a property does not necessarily prove ownership. Such a statement is made because if ownership were determined only by the name on the property, it would be as if a person who takes someone else’s turban would be considered the rightful owner of the turban simply because it is on their head. Such recognition would be unjust and should not be taken into account.”

2.    The Plaintiff’s portion regarding of the property claim

(a) In this case, the documentary evidence submitted by the Defendant regarding the properties have fulfilled the requirements of subsections 48, 49; and section 17 of Syariah Court Evidence (State of Selangor) (Enactment No. 5 of 2003), and these documents were accepted at the previous trial.

(b) Defendant also did not deny that the properties were acquired during the marriage period at any stage of the proceedings or trial.

(c) Therefore, based on the claims made by the Plaintiff and the evidence adduced by the Plaintiff, the Court is satisfied that Plaintiff indeed has rights to the property acquired during the marriage period and the claim is legitimate (sohihah).

(d) However, before determining the portions that Plaintiff and Defendant should receive from the property/assets, the extent of contribution must first be examined, whether direct and/or indirect contributions.  The Court needs to examine and determine the extent of both parties’ contributions to the property/asset so that the Court does not act unjustly by giving something to someone who has no right to it.

(e) In this case, the evidence shows that the Plaintiff and Defendant were married on 30 April 1996, and acquired the property around 2006 during their marriage. They were divorced on 8 May 2014. Therefore, the property is considered as matrimonial property, as it was acquired during the marriage and before the divorce.  Both parties acknowledge this through the documents submitted by the Defendant.  As a result, the Plaintiff is entitled to claim the property as compensation for her contributions and sacrifices during their nearly 18 years of marriage.

(f) The determination of matrimonial property claims is based on methods of proof according to Islamic Law.  The Court’s role is to evaluate the contributions of Plaintiff and Defendant towards those properties that were acquired by them in determining their respective portions through contributions made either directly or indirectly.

(g) Thus, for this case, the direct contribution that needs to be examined is the contribution made by Plaintiff and Defendant towards the acquisition of the property.

(h) Based on the testimony of Plaintiff and Defendant, as well as documentary evidence that was marked in the previous trial, SHC held that the Defendant has dominated in providing direct contributions in acquiring the single-story terrace house.

(i) Although the Plaintiff claims to have contributed directly to the acquisition of the house, there was no documents submitted to support this statement.

(j) However, SHC does not deny the Plaintiff’s indirect contributions during their married life with the Defendant for 18 years which allowed Defendant to peacefully acquire the house as a joint asset.

(k) Due to this, SHC considers that Defendant’s contribution is greater than Plaintiff’s contribution towards the house and it is appropriate for the house to be declared as matrimonial property with a distribution rate of 80% belonging to the Defendant and 20% belonging to the Plaintiff based on their respective levels of contribution.

(l) Regarding the Proton Saga and Proton Perdana cars, the Plaintiff failed to submit any documents concerning both cars such as grants or payment statements, whereas Defendant successfully proved the existence of these properties. However, in the Defendant’s defense and testimony, he stated that the Proton Saga car had been given entirely to the Plaintiff. Therefore, SHC held that the car is the sole property of the Plaintiff. Meanwhile, for the Proton Perdana, becomes the Defendant’s sole property as it was managed solely by the Defendant.

1.  SHC approves the Plaintiff’s application based on section 122 of the Islamic Family Law (State of Selangor) (Enactment No.2 of 2003).

2. SHC ordered that concerning the asset/property of the house located in Hulu Langat, Selangor Darul Ehsan, which has already been sold, the proceeds from the sale shall be divided between the parties with the Plaintiff being entitled to 20% of the proceeds while the Defendant shall receive 80% of the proceeds, in accordance with their respective contributions during the marriage.

3. SHC ordered that the Proton Saga 1.3 (A)’s sole ownership belongs to the Plaintiff and the Proton Perdana 2.0 SEI (A)’s sole ownership belongs to the Defendant.

1. The Court determined the distribution of assets based on both direct and indirect contributions of the parties during marriage in accordance with section 122 of the Islamic Family Law (State of Selangor) Enactment No.2 of 2003.