SOSI v SSSAA [2018] 3 ShLR 1

Syariah Court of Appeal (Selangor)

Matrimonial Property After Divorce

2.    Due to change of judges and other factors, the case had been deferred to 25 November 2013. On 16 February 2015, the Selangor Syariah High Court decided that the Appellant was entitled to 2% while the Respondent was granted the right for 98% of the value of the said house.

3.   The Appellant filed an appeal at Syariah Court of Appeal and declared that the Appellant also had a contribution on the said house (“Matrimonial Property”) which is as follows:

(a) Payment of a deposit of RM14,500.00;

(b) Legal cost of RM2,000.00:

(c)  Renovation fee of RM60,000.00.

2.    Whether it is required to evaluate the Matrimonial Property based on its prevailing market value at the time the case being decided by the Syariah High Court, or should the assessment considered the market value during the divorce proceedings?

3.   Whether the testimony of the Respondent’s witness, which is the daughter of the Parties can be accepted according to Hukum Syara’ and law?

(a) Section 75 of Syariah Court Evidence (State of Selangor) Enactment 2003 (Enactment 5 of 2003) provides that-

“The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence.”

(b) Therefore, the Court found that the onus to substantiate the assertion that the funds in question belong to the Respondent lies squarely upon the Respondent. This obligation arises from the Respondent’s claim, which contradicts the evident facts, asserting that the deposit was made through a cheque from the Plaintiff.

(c)  Regarding indirect contributions, it is not relevant in this case because the calculation of contribution is determined by the direct contribution of the parties involved based on Subsection 122(2) (a) of the Islamic Family Law (State of Selangor) Enactment 2003 (Enactment 2 of 2003) in which provides –

“Power of Court to order division of harta sepencarian

(2)  In exercising the power conferred by subsection (1), the Court shall have regard to-

(a)    The extent of the contributions made by each party in money, property, or labour towards acquiring of the assets”

(d) In the case of Massyura bt Mohd Takia lwn. Mohd Harzami bin Abdul Kudus (Kes Rayuan No. 10000-017-0061 Year 2015), based on the declaration made by the court pursuant to Section 122(2), the court is required to decide whether the property was acquired individually or by both Parties.  In no way the property can be acquired through both ways.  Should the court decided that the property was acquired by both Parties, then the distribution between the two should be on equal basis unless either party proves otherwise.  However, if each or either party can prove their individual contribution, the court can order such contribution accordingly.  This is as provided under Section 122(2)(a) of the Islamic Family Law (State of Selangor) Enactment 2003 (Enactment 2 of 2003).

(e)  By applying such principle to the case, the Court was of the view that Appellant is entitled to receive more than 2% of the distribution in consideration of the deposit payment of RM14,500.00.  Furthermore, the Court found that the “indirect contribution” that contributes by the Respondent since the Respondent has been taking care of and managing the needs of the children from the date of the divorce until the children reaches adulthood.  However, the Appellant’s plea for at least a 1/3 share of the house seems unbalanced in light of the contributions made.

2.    Whether it is required to evaluate the Matrimonial Property based on its prevailing market value at the time of the case being decided by the Syariah High Court, or should the assessment consider the market value during the divorce proceedings?

(a)   The Court referred to the book of Fiqh al-Manhaji ala Mazhab al-Imam al-Shafie which states that-

” the increase in value occurring to a certain property belongs to the mortgagee”

(b)   The Court also reffered in the case of Ainon bt Hamzah v Anwar bin Ilyas [2013] JH 36(1), Which explains-

“The additional of the value that happen in this case as mentioned in the book of Fiqh al-Manhaji, this is because the Respondent own ¼ portion of the properties as ordered as matrimonial properties in Lot 403A land.

(c)     In this case the Court found that the value of the Matrimonial Property should be valued based on the current market value and not the price during the divorce case which took place 19 years ago.

3.    Whether the testimony of the Respondent’s witness, which is the daughter can be accepted according to Hukum Syara’ and law?

(a)   Court highlighted two methods relating to the testimony of witness which are Syahadah and Bayyinah in which as provided in Section 83 of Syariah Court Evidence (State of Selangor) Enactment 2003 (Enactment 5 of 2003).

(b)   In this case the daughter testimony was categorized as bayyinah and the testimony cannot be accepted by the Court.

(c)   Therefore, the Court decided that the witness testimony must be supported with evidence that will be assessed by the Court.

(d)   Section 83 (6) of the Syariah Court Evidence (State of Selangor) Enactment 2003 (Enactment 5 of 2003) provides that-

“Who may testify as witnesses

(6) A person whose credibility is suspected because of his good relationship with and who has an interest in the adverse party is competent to give bayyinah but not competent to give syahadah”

(e)   Syariah Court of Appeal in this case found that the Judge was not mistaken in admitting the testimony of the Respondent’s witness.”

Key Take Away

2.    In cases where the wife also contributes financially, or the property is registered under both spouses’ names, generally, the distribution may be equally shared between the husband and wife.