Harta Sepencarian:

Definitions:
1. Harta sepencarian is defined in section 2 IFLA (FT) as property jointly acquired by
husband and wife during the subsistence of marriage in accordance with the conditions
stipulated by Hukum Syara.
Harta Sepencarian is based on malay custom. This was held in Robert v Um
Kalthum(1960) 1MLJ 163
Harta Sepencarian is a matter of Malay custom and applicable only to the case of a
divorced spouse who claims against the other spouse during his or her lifetime. This rule
of law is local law which the court must take judicial notice.
It is only the duty of the court to propound it.

Robert v Umi Kalthum(1960) 1 MLJ 163:

In this case, husband and wife bought a house jointly for RM50,000. He contributed
40,000 and wife 10,000 but house was registered under wifes name as H was at the time
a government servant.
Subsequently they divorced and husband claimed that the house should be divided
equally. Wife refused. Case by H in High Court.
High Court held: property was jointly acquired (Harta Sepencarian) finally both of them
agreed to divide equally.

Authority:
According

to

Surah

An-Nisa

ayat

to men is allotted what they earn and to women what they earn.

1. Joint efforts property:

32:

Both husband and wife work and buy it. The share will be equally distributed according
to their contribution.
2. Sole efforts property:
Only one party acquired the property. If wife takes care of the children then court will
consider her contribution.
Wife in this case will get 1/3 of the share. (S.58(4))

SI22
(1)IFLA(FT)
The court when pronounce application of divorce will make order of division of jointly
acquired properties.

S122(2)
Section IFLA(FT) joint efforts
Factors which court will take into account:
a) The extent of the contributions made by each party in money, property, or labor towards
acquiring of the assets;
b) Any debts owing by either party that were contracted for their joint benefit;
c) The needs of minor children from the marriage(if any)
Subject to those considerations, the court shall incline towards equality of division.
SI22(3)
Section IFLA (FT) sole effort
The court shall have power, when permitting the pronouncement of talaq or when making an
order of divorce, to order the division of any assets acquired during the marriage by the SOLE
EFFORT of one party to the marriage.

Section 58(4) IFLA factors which court will take into account
a) The extent of contributions made by the party who did not acquire the assets, to the
welfare of the family by looking after the home or caring for the family.
b) The needs of the minor children of the marriage, if any.
Subject to those considerations, the court may divide the assets or the proceeds of sale in
such proportions as the court thinks reasonable, but in any case the party by whose efforts
the assets were acquired shall receive a greater proportion.
The court will divide reasonably, but the person who acquires it will get more.
SI22C5
IFLA(FT)
Assets acquired during marriage include assets owned before marriage but was
substantially improved after marriage by the other party or joint efforts.

Boto bt. Taha vs Jaafar b. Mohd (1985) 2MLJ 98

In 1966 parties married. Husband was a fishmonger and the wife worked as a coffee shop
assistant. Husband business proposed. He bought land, matrimonial home, four fishing
boats and a fishing stall. In 1974 they divorced and H only paid her (maintenance) during
the period of iddah.
W applied for division of jointly acquired property. High court judge held that the fact
that W left her job after marriage and accompanied her husband in his business trips
entitling her to the claim of joint efforts property. There is an indirect contribution by W
and so 1/3rd must be given to her.

Mansyur

Abdul

Rehman

vs

Kamaria

bt

Noordin

(1988) 6 JH 289; (1988) 3 MLJ xlix

Husband, an indonesian applied to develop govt. land in 1962. Husband was given the

approval based on his marriage with the wife who is a Malaysian.

H brought his W and Children. Both of them worked on the land until the H divorced the
W.

Husband married another woman. During divorce no order was made regarding division

of the land.
The land was taken over for a housing project by the government and compensation was
paid to the H. It was stipulated when the compensation was paid it should be divided

equally between husband and wife.

After the divorce, one of the children stayed with the wife while the other four stayed
with the husband. The husband offered to give 2/7th of the proceeds to the wife and the

child with her while he kept 5/7th for himself and four children.
Wife brought an action claiming that she was entitled to 50% of the shares in the
compensation paid for the land. Kadi ruled in her favor and ordered the husband to give

half of the compensation to the wife.

Husband appealed. The appeal committee referred to the Holy Quran, the Hadith,

textbooks such as al-Umm, Bughyatul Murtashidin, I anat at talibin.

Held;
Won, confirming the decision of kadi. Where property of H and W has been mixed, the
only solution is both must take an oath and the property must be divided equally.

Rokiah bt Hj Abd Jalil vs Mohd Idris Shamsudin (1986) 6 JH 272:

After divorce wife claimed matrimonial property.

Kadi; the claim for Harta Sepencarian was dismissed because it was sole effort property
On appeal, the court held: she is entitled for Harta Sepencarian because of indirect
contributions of the wife in looking after the household, the husband and children for the

period of over 35 years of marriage.

Court ordered 1/3rd of the share to be given to the wife.

Tg Anun Zahrah vs Dato Hussain (1980) 3 JH 125:

Wife claimed Harta Sepencarian,
Husband said the property was sole effort,
Held the moral support given by W to get Dato is considered by the court.