Open AccessFacilitating the Division of Matrimonial Property (Harta Sepencarian) through Hibah in Malaysian Shariah Court
Author(s) -
Noorul Huda Sahari,
Siti Khadijah Ab. Manan,
Rafeah Saidon,
Amal Hayati Ishak
Publication year - 2022
Publication title -
international journal of business and management
Language(s) - English
Resource type - Journals
ISSN - 2590-3721
DOI - 10.26666/rmp.ijbm.2022.1.4
Subject(s) - spouse , business , distribution (mathematics) , settlement (finance) , wife , property (philosophy) , accounting , law , political science , finance , mathematics , payment , mathematical analysis , philosophy , epistemology
Distribution of matrimonial assets or assets between spouses is often associated with unfairness to one of the parties, especially to the non-working wife. This is due to the fact that the current provision on the distribution of matrimonial assets emphasizes the contribution of the parties involved as the sole criteria in determining the proportion of their share. Though the law has not been amended to address this issue, it is observed that a transfer of ownership through hibah for the benefit of family members during marriage provides an alternative to the fairer distribution of matrimonial assets. Therefore, this study is undertaken to examine the applicability of hibah in dividing the assets through court practices. For that purpose, the study adopts a qualitative method which involves an analysis of unreported cases within the time frame of 2000-2012 collected from six zones representing Syariah Courts in Malaysia where analysis is made based on several variables such as types of matrimonial property, factors for consideration and proportion of distribution of the assets. Based on that sampling it has been discovered that the application of hibah in the division of matrimonial assets in the majority of cases is practically settled by way of sulh (amicable settlement). Ownership transfer of matrimonial assets especially through hibah could possibly serve in the best interest of the children and their needs as well as providing adequate security for the spouse. This has been successfully practiced in a polygamous marriage where a study shows that one party (husbands) are in fact more generous in dividing the assets, especially when dealing with the interests of their children. There were also cases where the husband was willing to transfer all assets to the existing wife which is rarely achieved in another litigation process. Thus, this study suggests that the hibah mechanism could be upgraded as law and to be widely practiced when dealing with the division of matrimonial assets.