An Analysis of Harta Sepencarian Cases in the Syariah High Court of Ipoh

Abstract

Disputes over matrimonial assets, or harta sepencarian, as it is commonly known in Malaysia, are among the financial cases filed in the Syariah High Court of Ipoh. Although there are specific provisions in the Islamic Family Law Enactment (Perak) 2004 on the division of harta sepencarian, there are some questions, particularly regarding the judicial approach used by judges in determining which parties are entitled to make claims, categories of assets that are considered to be part of harta sepencarian, the interpretation of matters related to the direct and indirect contribution, as well as the proportion of distribution of the assets. This study applies document analysis techniques by referring to the files of the related cases recorded from 2011 - 2016 at the Syariah High Court of Ipoh, and also cases that were reported in law journals as a basis for comparison to clarify the issues discussed. The findings show that although the decisions of the Syariah High Court of Ipoh on issues raised in such cases are not much different from what is decided in the cases reported in the law journals or other Syariah Courts in Malaysia, there are several other aspects, namely on the matter of EPF savings, gratuity, and insurance compensation, where the decisions held by the Syariah High Court of Ipoh are different from existing fatwas (legal opinions on Islamic law) and approaches taken by other Syariah Courts in Malaysia. The different approaches are also noted in cases where the disputing parties have children. Although the rights of disputing parties are properly considered in deciding the cases, in certain cases priority is given to the welfare of the children, and the Court grants property rights to the children.