The recent uproar in connection with the Islamic family law amendment, passed by Parliament, is indeed a very interesting development.
Firstly, the issue has been portrayed as if a battle of the sexes had been proclaimed such that it seemed the two sides of the debate were on a collision course right from the beginning. The main issue at stake is nothing more than what is known as jointly acquired property or “harta sepencarian.”
In retrospect, the concept of harta sepencarian has evolved from a Malay/Muslim adat that recognises the need to compensate a divorced wife by giving her a share of her husband’s assets acquired throughout the duration of the marriage.
Initially this customary right was given legal recognition by our civil courts. Judges often heard relevant applications by Muslim wives upon divorce or the death of their husbands.
When the claims were accepted, that portion of the assets was extracted from the entire estate, and the remainder would be divided in accordance with the Islamic law of inheritance among their heirs including the wives themselves.
In the case of a divorce, a wife is entitled to make a claim based on the same grounds with supporting evidences.
Later that very right was recognised by the syariah courts on the same grounds as those recognised by the civil courts.
Some syariah judges however were prepared to recognise that right on the basis of sharikah or partnership between the spouses when both had contributed to the acquisition and development of the relevant assets.
It has been argued that it was not fair to ignore contributions made by one party to the marriage in the acquisition and development of the assets.
It had been decided in a number of syariah court cases that the term “contribution” can also mean helping the other party emotionally in the relevant process leading to the acquisition of assets and their subsequent development.
What is interesting is that the validity of harta sepencarian is based on the need to achieve justice for both parties, meaning that one who takes part in any asset acquisition and development must be allowed to have a share in it, or be remunerated for such efforts.
Now the most important question to be answered is whether one party to a marriage, a wife or husband, can be deprived of the relevant share when she or he has actually contributed directly or indirectly to the relevant process that led to the acquisition or development of the relevant assets.
In my opinion, the law, even before it was amended, was clear enough in its fair treatment of spouses. Any party who can prove his or her contribution is allowed to claim a relevant share. Only in the absence of any recognised evidence regarding the nature and ratio of the contribution will the court allow both parties to share the disputed assets equally.
What the new amendment seeks to achieve is to provide for a better clarification as to the position of a wife whose husband has applied to take a second wife. It allows her to ask for the assets to be properly divided.
By the same token, a husband is allowed to take the same recourse to ensure that fairness is achieved for both parties.
If the husband is not allowed to take the same recourse, then there would be a strong possibility that in future things will become more complicated when the second wife’s role emerges, when the husband makes further efforts to further improve the assets with the eventual result that the second wife may argue that she too has helped the husband in the process.
This scenario would not have happened had the assets been divided well before the husband’s second marriage.
From the above discussion it is clear that gender is not the issue here but the parties contributions and roles, or at best the court’s estimate to arrive at a just and fair division of assets which are jointly acquired.
Therefore to argue that if a claim by the husband is allowed in the above-mentioned context it means that he is unjustly assisted in appropriating the wife’s assets, then this is absurd. Certainly, if there is no proof or evidence of his contributions the claim should definitely be rejected.
Islam, right from its early days, recognises the rights of married women to acquire and own property in their own names.
This is unlike some other legal systems which deny women their rights to own assets in their own names distinct from that of their husbands upon marriage.
In the Western world, it was only in the past 200 years or so that married women were gradually given the right to keep and own assets in their own names.
Ikim is currently making an effort to arrange for a one-day seminar or forum to discuss further some of the issues that have so far been raised in relation to the law that was recently passed.
There is a genuine belief that if all parties are sincere in the words uttered about justice for all, perhaps this month of Haj is the best time to re-examine our inner conscience and real intentions.
After all, God knows best what lies in our hearts.